The Imperative to Punish

A judge for the United Slates Court of Appeals for the District of Columbia circuit since 1949, JUDGE DAVID L. BAZELON has had repeated opportunity to reflect upon the effect of punishment upon the criminaland upon society. The article which follows formed the gist of the Brandeis Lecture which Judge Bazelon delivered at Brandeis University this spring.



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IN THE administration of the criminal law today, we desperately need all the help we can get from modern behavioral scientists, before trial, during trial, and after trial. The law by itself, without these workers, is cast in the hopeless role of a socially isolated, traditional bulwark against the welter of personal, social, and economic forces which create today’s problem of crime and the so-called criminal population. And, in this losing struggle, the law—by which I mean police, judges, lawyers, and prison guards — would have at its disposal a limited set of concepts honored largely by time alone. In brief, the law would have the lex talionis, the idea of retributive punishment based on absolute moral principles of purportedly universal application. By itself, the law would dispose of both the problem of crime and the criminal himself with the one idea of punishment. The program would be: Repress crime and all antisocial behavior by punishment alone; rehabilitate the offender by punishment alone; achieve social understanding of wrongdoing and the wrongdoer by the sole mechanical response, “Punish them — they deserve it!”

If these remarks seem intemperate, it is, of course, because they do not describe our actual system of criminal law. For one thing, stern retributive justice has always been tempered by mercy and forgiveness, by the ubiquitous impulse to afford the transgressor a second chance. This Prison seene by Piranesi. happens in practice even when it is not allowed by theory. We simply find it too difficult, loo nonhuman to punish, punish, punish, even though wc may hold most seriously the moral imperative to punish, and even though wc may feel that we arc wrong when we do not. And, for another thing, the behavioral scientists, along with their facts, ideas, and methodology, have, as a matter of fact, increasingly intervened at many stages of the ad - ministrative process. Social workers, clinicians, welfare agencies, even the police, as well as many others, attempt to deal constructively with the juvenile delinquent before he is sent to a reformatory to begin his professional training as the criminal of the future. The psychiatrist comes to court, and sometimes his presence there does have something other than a ritualistic effect on the outcome of the proceeding. He and his co-workers are more and more frequently consulted in the course of sentencing, probation, parole, and rehabilitation. And occasionally all of this activity finally has its effect in a judicial decision, even one delivered from an appellate bench.

Clearly, our criminal judicial system is a very mixed affair — some would say a very mixed-up affair. But things arc happening; there is agitation and movement, much heat, and a certain amount of light. To put it simply, ours is a system in transition. We -are painfully and slowly coming to a clearer understanding of alternatives and ncccssities, and we are also making some progress in working out institutional and administrative means. Much of the intellectual ferment has centered around the wording of the jury instruction when the defense of insanity has been raised.

For more than a century, both in England and in most American jurisdictions, the jury instruction has been based upon the M’Naghten rules. The M’Naghten formula emphasizes the rational capacity of the mind and excuses from criminal responsibility only the individual who at the time of the crime “was laboring under such a defect of reason, from disease of the mind, as not to know” what he was doing or that it was wrong. However this test might have been interpreted — volumes have been written on the possible meanings of the words — it has in fact worked to exclude medical evidence. I am almost tempted to say that under M’Naghten practice the psychiatrist appears in the proceeding only to testify to the irrelevance that the law has already decided upon. It assigns to the psychiatric expert in court a sacrificial role in a ritual of condemnation. The expert is asked a question which, most leaders of the profession inform us, cannot be answered within the terms of their discipline. And unless the rules arc breached, as they frequently are on the trial level, the psychiatrist is not permitted or encouraged to address himself to the clinical questions, which are the only ones he is truly expert in answering.

A broadened insanity test was adopted by the United States Court of Appeals in Washington in 1954, one designed to relax the rigors of M’Naghten and to welcome the relevant facts and insights of modern scientific psychiatry presented in its own terms. The Durham test, substantially following the rule adopted in New Hampshire in 1870, simply asks whether the accused was suffering from a mental disease or defect and inquires as to the relation between any such condition and the criminal act. It has not yet been adopted outside the District of Columbia.

THE controversy over how to instruct a jury on the insanity defense is, in my opinion, only the peak of an iceberg visible above the water line. The peak is chiefly important as an indication of the general whereabouts of the much more significant eight ninths lurking beneath the surface. It is foolhardy to take the visible peak for the whole massive obstruction.

Well, what is this iceberg? If our system is in transition, then the question properly arises, Transition from what to what? From M’Naghten to Durham? Hardly. Certainly from M’Naghten, but not just from that ritualistic phrase, except perhaps symbolically. And Durham, even viewed as a concept, as an approach — which is the way I prefer to view it, rather than as nineteen words of a jury instruction — is merely one way of welcoming the psychiatrist into the courtroom. It is a beginning, not an ending, and it relates to the insanity defense, which is only that visible one ninth of the iceberg.

I believe that the subsurface part of the iceberg consists of the retributive urge to punish irrespective of effect and the accompanying intellectual justification of this primitive urge, the so-called theory of deterrence. A deep emotion and a complicated rationalization.

Wherever one turns in an effort at reform in the treatment of offenders, one comes up against this need to punish and its defense by the theory of deterrence. Of course, there are many other arguments put forward at various times in justification of the present system, with its great emphasis on punishment for its own sake or punishment as the answer to all problems. For example, both Judge Learned Hand in this country and Lord Justice Denning in England, the first sadly and the latter more firmly, have referred to the public’s demand that the sinner shall suffer. Judge Hand stated that he did not “share that feeling, which is a vestige ... of very ancient primitive and irrational beliefs and emotions.” Lord Justice Denning spoke more strongly by saying:

It is a mistake to consider the objects of punishment as being deterrent or reformative or preventive, and nothing else. . . . The truth is that some crimes are so outrageous that society insists on adequate punishment, because the wrongdoer deserves it, irrespective of whether it is a deterrent or not.

I can assure you that similar views are frequently expressed from the bench in courts throughout our land, and often enough when the crime is no more “outrageous” than juvenile car theft. Sometimes the court, in relieving itself of these sentiments, will refer to society’s demand for retribution, communicated to the court by some unknown intermediary, or perhaps so obvious as not to require communication.

So it is still the need to punish that confronts us, although at times not my need, but somebody else’s. All this, as Judge Hand suggests, is highly irrational. I am sure that we must recognize this irrational need as a social fact, but I cannot sec that we must abandon attempts at reform because of it. After all, the public that needs to punish also needs to forgive, and it especially needs to be given, for its own protection and well-being, the most rationally effective administration we can devise for it. It is not getting that now. The excessive emphasis on punishment, with the consequent neglect of genuine Rehabilitation, is accompanied by a disastrously high level of recidivism. In federal prisons, for example, the rate increased from 61 per cent to 67 per cent from 1949 to 1958, In this same period, the number of serious offenders who have had two or more previous commitments grew from 39 per cent to 46 per cent. Please realize what these figures mean: In two thirds of the cases, punishment neither reforms nor deters the prisoner when given one chance, and on the second time around, it fails again in nearly half of the cases.

THIS being the case, why is there such persistent, irrational emphasis on it? I think one reason is the deep, childish fear that with any reduction of punishment, multitudes would run amuck. It seems to me that this fear must be based on exaggerated notions of the role of punishment we had when we were children. The reasoning is: “We are good adults because we were punished when we were bad children; any adult who is bad should get some more of what we got when we were children. Transgressors must be punished to reconfirm our adulthood and our goodness, to distinguish us from them.” But most of us who have been good for many years — or at least haven’t been caught — have not maintained our high estate because of witnessing frequent public hangings and whippings or stopping to observe a malefactor being drawn and quartered on the corner of a busy intersection. Quite the opposite. According to the famous Warden Lawes of SingSing Prison, this is especially true of the prosecutors and judges who so zealously take upon themselves the rhetorical burden of carrying out society’s need to punish. He sent invitations to the appropriate officers of the law to attend each of the 114 executions carried out at Sing Sing while he was warden. Not one ever found time to attend.

Perhaps one should be encouraged by the fact that the modern urge to punish is no longer so immediately personal. I suppose we should all be pleased by the recent report from Saudi Arabia announcing an important reform in criminal law administration, that hereafter a thief’s hand will be cut off by an “expert surgeon” using anesthetics rather than by an amateur with a hatchet. An accompanying reform is that adulteresses will no longer be stoned to death, as in Biblical times. As Saudi Arabia enters the modern era, they will now be shot.

So there is something like progress in these matters. I would remind you that, not half a century before the M’Naghten rules were enunciated, more than two hundred crimes were punishable by death in England. It is an interesting speculation whether England could possibly have become the civilized place it is today if the number of capital crimes had not been reduced. But Lord Justice Denning still believes in punishment for its own sake —or still believes that society believes in it.

The belief in punishment at a distance was strikingly illustrated by a report from South Africa last April. It seems that the caning of offenders was being carried out in a magistrates’ court located near die center of Cape Town. Sentences of up to ten cuts were inflicted on malefactors, beginning with eight-year-old boys, in that particular jurisdiction. The matter became newsworthy when the public began to object to the practice. The objection, however, was not to the punishment itself but to the uncomfortable circumstance that it was administered in the business district of the city. One citizen complained, “We can clearly hear the swish and smack of the cane and the pleadings and screams of people being beaten.” It appears that this noise was upsetting women office workers. Not only the women were disturbed. One man “said that his conversations with important clients had been interrupted by the ‘howling of somebody being thrashed.’ ” The problem was solved by police assurances that the beatings would thereafter be administered in a basement, where they would not disturb the public.

What has to be explained, and finally understood. is the really frightening scope of the irrationality of our notions and practices regarding punishment. It seems that we just do not know how to be practical about the matter. For example, most of us, I imagine, have achieved major control over our own aggressive and vindictive impulses. We would be revolted to watch a hanging or a beating, and even more to participate in one. When we arc personally called upon to administer punishment or any form of serious deprivation, we take the task as a heavy duty and think very hard to make certain that we do no more and no less than we feel to be necessary and effective in the circumstances. This is so in the disciplining of our own children or any other subordinates. But when it comes to the administration of crime, we hand the whole matter over to a distant bureaucratic machine, and we want to hear no more about it. Our attitude is, Let the state take care of them.

In other words, our personal resolution of the issue of vindictiveness seems to be achieved at the cost of our human capacity to identify with the offender. Isn’t it strange that the criminal law tradition, which not so long ago was based on the supposedly deterrent spectacle of public punishment, has come full circle around and now can be said to be based, in effect, on the distance and even the secrecy of actual punishment?

I WONDER how many of my readers have ever seen the inside of a prison. What you would see there can be justified only on the assumption that the prisoners are less than human and that therefore the obviously dehumanizing process they are undergoing is appropriate for them. Because they have stolen property or committed acts of violence, they are outside the pale of human society, and that is the end of the matter. But, of course, after having further brutalized them, after having failed to deal with the causes of their behavior and having failed to effect any serious rehabilitation, we then release them into society, where they can experience their second or third or fourth opportunity to fail. As Karl Menninger has said, these people are failures first and criminals later. To be a criminal is not, strictly speaking, merely to have committed a crime. It is a social branding plus penitentiary training, all of which serves only to confirm the initial personal failure which led to the first antisocial act. As I speak of crime and the criminal, I should emphasize that I am thinking of the delinquent car thief, the mugger, the amateur burglar and armed robber, the sex offender, the man who commits assault and other crimes of violence; my attention is not directed toward the special problems represented by the criminal elite, consisting of competent professionals, the organization men of the syndicates, or the whole separate area of white-collar crime.

It is as if society cooperates with certain human beings who are social failures to create this object called the criminal. Our present system of punishment is an essential part of this process, not of any process that can be called reforming or rehabilitative. Why does society go to all the trouble and expense of creating this special class of human beings? I think chiefly because we really do not comprehend what we are doing, because we do not want to deal with the facts of social failure to begin with, and because we are not prepared to follow out the logic of our attitude and dispose of these failures outright. There results a sort of halfway house, neither disposal nor rehabilitation, but a new class of human beings to mirror society’s confusion on the profound issue of failure in the educative process and reliance on punishment to cure or cover over all such failure.

What I am suggesting is that the criminal serves as a scapegoat. And this, as much as anything, is impeding obvious and sorely needed reform in the treatment of offenders. I use the word “scapegoat” in the specific sense in which it has become a key term in the psychosociological analysis of prejudice; that is, a deeply held, unrealistic, projective image of a minority group indulged by members of a dominant group. The essential fact in this form of prejudiced perception is that the member of the dominant group refuses ordinary human identification with representatives of the minority group, sometimes for lack of opportunity, sometimes because of a deeper unwillingness.

But, as the analysis of prejudice has revealed, there is a very meaningful, if distorted, identification nevertheless: Just as the Jew is avaricious and the Negro lazy and lascivious, so the criminal is violent and impetuous in trying to achieve his ends; he has been foolish (if caught), has lost control over himself, and has done what he wanted to do just when he wanted to do it. Don’t you and I have these impulses? Doesn’t the anti-Semite envy the Jew as he imagines him, and doesn’t the Negrophobe believe that the Negro has more primitive pleasures in his life? First we bestow upon them our repressed desires, then we place them outside the pale, thus neatly disposing of them and our forbidden impulses.

But, of course, it doesn’t work. Eventually one meets and gets to know a Jew or a Negro. The Jew may be poor, the Negro deprived and unhappy, and in any event, both are recognizably and disturbingly human — that is, “like us.” Likewise the criminal. We can see that he would like to master his impulses, and we see that we might have responded as he did to his provocations, to his miserable social and psychological background. We identify on a one-to-one human basis, if we retain the capacity to do so, and behold! the whole complexion of the problem has changed. He is like us, only somewhat weaker, and he has failed in a primary obligation of the mature citizen. He needs help if he is going to bring out the good in himself and restrain the bad. But first we must stop treating him as a pariah, as a person who is entitled to punishment and only punishment, because if we treat him that way, he will become that way.

Another point to be understood about punishment is that it is not a universal solvent. Different people react differently to it. This is perfectly obvious with regard to children and needs no elaboration. Our response to punishment is like anything else we learn; some learn better than others, and some learn the same lesson differently from others. In this broad sense, the criminal is the person who has been miseducated with respect to punishment and the threat of punishment. His re-education must consist of something in addition to just more of the same, more punishment. To conceive otherwise would be like giving harder and harder lessons in algebra to a student who has already evidenced his inability to absorb the basic lessons. Only an incompetent teacher, a man of ill will or one with very limited resources, would go about destroying a student in such a fashion. But that is just what we do with so many people who, if they had had the proper capacity to respond to punishment, would not have got into trouble in the first place. We confirm all of their wrong feelings about punishment. And so we create a class of hopelessly recidivistic criminals.

I THINK that all I have been saying about punishment can be summed up under the headings: Punishment without thinking, Punishment as a mechanical and exclusive response, Punishment unaccompanied by a rational view of its purpose and effect. As the late George Dession, one of the most careful, creative legal thinkers about these matters, has said, “Punishment is never good in itself.” That proposition is perhaps the first step toward wisdom in thinking about the criminal law system.

I would not want to give the impression that I am opposed to all measures of punishment or deprivation. I recognize the obvious utility of punishment, and its necessity: what I object to and wish to dissociate myself from is the all-ornothing attitude which seems to characterize so much thinking in this field. Let me illustrate. When the Durham case was decided in the District of Columbia, a hue and cry was raised that great numbers of vicious criminals would soon be roaming the streets. Many people felt that either offenders are punished by execution or a penitentiary term or they, in fact, get off scot free, that all of them must be punished to protect society. Nothing could have been more off the mark, as subsequent events have shown. Persons acquitted by reason of insanity are confined to a mental hospital until it is determined that they are no longer a danger to the community. Such commitments may, therefore, continue for a longer period than would have been served in a penitentiary for the offense charged. They are clearly a deprivation, a negative sanction, and in this sense punishment, but with the very important difference that this form of punishment is not retributive, it is no more than may be necessary, and it is subordinate to the purpose of rehabilitation.

Some people seem to feel that whenever trained workers, including psychiatric therapists, supplement the work of police and prison guards, or play any independent role at all, the offender will be mollycoddled, and consequently society’s bulwark against crime will crumble. This is nonsense, but the attitude persists. Dr. Melitta Schmideberg of the Association for the Psychiatric Treatment of Offenders is one of the most devoted and distinguished workers in her field. I am not competent to underwrite the validity of her views, but she is a richly experienced therapist in this special and rather neglected area of treatment. She believes in a strongly directive therapy and understands that the threat of loss of liberty — of going to jail or going back to jail — plays an important part in her work with probational offenders or recidivists. This threat is an ever-present backdrop to her efforts to help the patient get along with his probation officer, to stop breaking the law, to get a job and hold it, and so on. She feels that “Fear of punishment and guilt keep normal people in check, but an overdose of anxiety can react in the opposite direction on criminals.” She states the problem as follows: “If the therapist condemns the offender out and out, he cannot treat him; if he condones his offense, he cannot change him.” This is certainly not a mollycoddling approach. On the other hand, she objects eloquently to the psychological effect on offenders of a period in the usual penitentiary. She feels that one of the most imperative uses of therapy is to help the ex-convict overcome the effects of prison. Now, does it strike anyone as sensible to deny early treatment of first offenders, send them to a penitentiary where their dangerous problems will be dangerously augmented, and then end up with an infinitely more difficult problem-personality to deal with later on?

WHY do we do it? Why do we treat offenders this way? Any adequate answer will probably be found to lie very deeply indeed, probably at the core of man’s inhumanity to man, in each of us and in the history of all of us.

But when we transcend our emotional urge to punish and begin to think seriously about crime and the criminal without such undue reliance on the one idea of punishment, we come up against an intellectually much more formidable barrier. And that is the ubiquitous theory of deterrence. On the intellectual level, this theory turns out to be the greatest barrier to progress in the criminal law.

This theory proposes that actual malefactors be punished in order to deter potential malefactors. Now, clearly, the convicted prisoner was not deterred by the prior punishment of others from committing the crime which placed him in prison. And to speak of deterring him from committing another offense later takes us back to the previous discussion of the effectiveness of punishment and concerns rehabilitation, not deterrence. So the theory, properly considered, involves only the justification of punishment because of its show effect, its supposed effect on others.

Logically, of course, the more we witness the pains of punishment, the more likely we are to be deterred from crime (that is, if active fear deters). Originally, this logic was a part of the deterrence theory. But in our day it is not. To illustrate this,

I should like to quote from the 1953 report of the Royal Commission of Capital Punishment:

In the first half of the nineteenth century executions still took place in public. This indeed was thought to be an essential part of the deterrent value of the death penalty. But public executions, though the publicity was deterrent in intention . . . became in practice a degrading form of popular entertainment, which could serve only to deprave the minds of the spectators.

Parliament ended the practice in 1868. The report also suggests that the method of hanging was invented and found favor because of its “advertisement value.” But at the hearings before the commission, “witness after witness” defended hanging because it was the most humane method of execution! The report notes this “surprising inversion” succinctly as follows:

Thus a method of execution whose special merit was formerly thought to be that it was peculiarly degrading is now defended on the ground that it is uniquely humane.

So, clearly the deterrence theory is not quite so logical as it used to be.

A common argument offered in support of deterrence is this: The ordinary citizen would not obey traffic signals if sanctions were not imposed on all drivers for breach of the rules. This argument depends for its persuasiveness on a supposed identity between a traffic violation and murder, assault, and grand theft, all these being “breach of the rules.” Although I suppose they all do come under this category, the empirical differences are more impressive to me than the abstract similarity. But more important, because of the precondition of licensing, the persons to whom traffic rules are addressed are a select group to begin with; those who are incompetent to conform to the rules, for whatever reasons, are weeded out before the sanction system is applied. And that is an important point. Although traffic rules have very little moral force behind them, the system works tolerably well just because reliance is not placed solely on sanctions but also on the judgment of competence.

I think we all understand that the maintenance of public order must be backed up by a system of sanctions, deprivations — punishments, if you please. Neither law nor morality can sustain itself, from generation to generation, without the threat of some form of punishment. But the difficult point to be comprehended here is that the system requires the threat of punishment, not punishment itself. An internal control system generated by our mores and received belief’s keeps most of us from stealing. For those who require external controls, it is the threat of going to jail, not actual time spent there, that keeps them from illegal acts. Actual sanctions are needed, as far as the system is concerned, only to give substance to the threat, to keep it from being reduced to impotence. The problem really posed by the question of deterrence is: How much actual punishment, and what kind of actual punishment, is required in order to sustain the threat of punishment at an effective level? Or, stated inversely, now looking at the problem from the point of view of the individual rather than the system: How much nonpunishment, how much besides punishment, can be allowed in treatment of the individual without inviting a breakdown of the system of sanctions?

I DO not propose to solve this problem here, even stated in such fashion. But I do want to make a few observations about this critical and perplexing question. First of all, I believe that in the absence of decisive empirical data, we should take a developmental approach; that is, we should view the issue historically and not assume that any particular status quo is ultimate and unalterable. I will confess that I am subjectively distrustful of proponents of deterrence who answer the question: How much punishment is necessary? with the quick reply: Exactly as much as we now have. And those who use the necessity of deterrence to justify the scandal of our prison system also earn my suspicion.

Punishment has a role to play in the education and re-education of the individual. The threat of some form of deprivation is, of course, essential in the functioning of any moral or legal system, and the threat must have substance. But these basic requirements of the criminal law have been used — I will say misused — to justify the present system, which contains a preposterous predominance of senseless punitive elements. The theory of deterrence, as too frequently applied, results in degrading the individual for a purported social purpose — contrary to the democratic ethos. In doing so, in casting the individual offender in the role of a scapegoat, it begs the entire question of justice. And while no sociolegal system can reach a perfect incarnation of justice, none can survive in the hearts of the people which bypasses or does not engage the issue seriously.

If we were not so set on punishing the offender for the sake of punishment, if we did not justify this practice by reference to its deterrent effect, we could understand that rehabilitation lies at the spiritual heart of any vital moral system. The alternative can only be destructiveness. Even the violent corporal punishments of the past were designed to rehabilitate the wrongdoer’s soul, which was held to be of much greater concern than his body. In our secular age, we have lost sight of this spiritual truth. But we still punish, without hope of reformation, without belief in saving the soul by damning the earthly body. And our entire moral system suffers thereby.

Would it really be the end of the world if all jails were turned into hospitals or rehabilitation centers? The offender would then, just as the committed mental patient is today, be deprived of his dearest possession, his personal liberty. Punishment enough, I should think, to satisfy our punitive urge and to induce a deterrent fear. The offender’s purpose in such a rehabilitation center would be to change his personality, his very style of responding to life. I should like to suggest, quite seriously, that this is the greatest sanction of them all. And it is, indeed, the true command of all religion and all morality.

The difference between the offender and the mental patient and the rest of us happily normal citizens is that they have a special problem and need special help in living up to society’s expectations. A few of us have had special problems in the course of our lives, but we were lucky enough to get the help we needed or strong enough to get by on our own. We are entitled to congratulate ourselves on the superiority of our endowment or good fortune but not, I think, to celebrate our triumphs by degrading our less fortunate neighbors. Is it in any way necessary for our own benefit to perpetuate the shame of our penitentiaries, where a youthful offender, having been processed through the homosexual auction block, will be taught the ways of crime and perversity by a hardened expert?

Among the many serious issues I have not discussed, prominent mention should be made of the current and future limits of that omnibus grouping called the behavioral sciences. How much of the promise is valid hope; how much wishful thinking? We can only find out by trying, by experimenting. Take the question of psychiatric treatment, for example. It seems clear that new, more sophisticated techniques will have to be developed with more pointed relevance to the problems of offenders. But where are the experimental clinics, where are the budgets to attract competent staffs, where is the administrative approach that would welcome and facilitate this urgent work? Blocked, I have suggested, by the belief in punishment.

Many critics of the reforming attitude in criminal law administration fear the unknown contours of a future dominated by the experimental ideas of rehabilitation. Reformers may share some of these fears, but they are motivated even more by fear of the consequences of continuing our present practices. I am deeply disturbed by the whole question of the indeterminacy of the period of incarceration, which is a very serious problem today and will undoubtedly grow in importance as reforms favoring rehabilitation are instituted. The image of one class of experts administering the lives of another class of unfortunates has some very disquieting aspects. I comfort myself with the thought that images of the future are frequently discomfiting, and that early surgery, for example, was probably greeted with the same disquiet.

New problems have a way of begetting new solutions, and in this instance, solutions may be found which will be consonant with our traditional concern for civil liberties. I, for one, have no intention of advocating permanent incarceration for behavior not seriously dangerous to society.

Crime and criminals belong very much to their particular time and place. They grow out of very specific social settings. Moreover, any system of sanctions and any system of rehabilitation apply to and within a society; they do not substitute for one. And these systems cannot be much better than the society in which they exist. On the other hand, they should not be worse. I leave you with the question of whether they in fact are.