Game Theory… con't.

In the Spring 2007 Issue of The Reporter, we talked about the symbology of “tough on crime”, and quoted professor Franklin Zimring, from his book, Three Strikes and You're Out in California: Punishment and Democracy, as:

     [There is] the . . . assumption that virtually all issues of punishment policy can be reduced to a zero-sum competition between crime victims and criminal offenders. Whether the question is prison terms for burglars, registration of sex offenders, or recreational facilities in state prisons, the notion of zero-sum competition asks the voter to decide the issue by choosing between offenders and their victims. The implicit assumption is that anything that is bad for offenders must be beneficial to victims. As a matter of utilitarian reasoning this approach has little merit, but as political rhetoric it is both versatile and appealing. Once every policy question becomes a status competition, the appropriate result is a foregone conclusion. Instead of calculating costs and benefits, all citizens must do is choose sides.

     The rhetorical versatility of this conception is quite astonishing. No punishment is too extreme if anything that hurts offenders benefits victims.
. . . .

     If the motivation behind public support for enhanced punishment is a symbolic denunciation of criminals and crime, this need to make a symbolic denunciation may not be closely linked to any particular set of outcomes.

In that Issue, we were quoting Professor Zimring to illustrate the point of the symbology of the whole “tough on crime” agenda. But the other key point that the learned professor makes in this short passage references the transformation of the criminal justice process into a zero-sum game, where the “players” are the victims and the offenders.

Of course, while this “version” of the zero-sum game within the criminal justice system may well be appealing to some, it is nonetheless fallacious in that it is based on false premises.

  • “Hurting” offenders does not produce an outcome that is beneficial to offenders and, by logical extension, does not produce an outcome that is beneficial to the community or the state;
  • Nor does hurting offenders produce an outcome that is beneficial to victims – the “damage” inflicted on offenders does not, and cannot, “heal” the harm occasioned to the victim.

The reality is that this is not a zero-sum game, nor even a non-zero-sum game; it is a negative-sum game. That is, “everybody loses”.

So, to this point, game theory can help us to better understand the actual outcomes of a retributive criminal justice system, and in this regard help to inform the development of future criminal justice policies with the goal of achieving positive outcomes.

But can it do more? Can it help us to devise criminal justice policies that not just avoid negative outcomes, but actually yield positive outcomes?

If we return to the concept of the non-zero-sum game, where the desired outcome is that all participants in the game come out as winners (at least in some sense), it may well be that this too can prove instructive in the future development of criminal justice policy and procedure.

In the non-zero-sum game, the desired outcome for the participants is not that, at the end of the game, there is one winner, and everyone else loses. Rather, in the non-zero-sum game the desired outcome is that all participants come away from the game having “won” something.

Is there a precedent in the criminal justice system for dealing with a matter in such a way that everyone comes away from the process having “won” something?

Well, yes there is. It's called “Restorative Justice”.

The John Howard Society of Alberta has been researching and writing about the strengths of the Restorative Justice (RJ) process for almost 2 decades. During that period, the body of scholarly literature, around the word, has continued to grow, and continues in unanimity that this is a process that is, to stay with our theme, a “non-zero-sum game” – everyone wins!