How Do We Decide When to Punish Our Children? || Criminal attorney

How Do We Decide When to Punish Our Children?

Every sweet child in the world is in the criminal justice system. The unofficial one, that is; the one run by their parents or other adult caregivers. That’s because every child, no matter how good, occasionally does something wrong, and when that happens it is up to the caregiver to serve as arresting officer, judge, jury and — if necessary — jailer.

I’m getting this from Steven Shavell, a professor of economics and law at Harvard Law School. Shavell told me he began studying how parents discipline their children about eight years ago, when he was trying to solve some puzzles about civil and criminal law. He used Amazon’s Mechanical Turk, where people complete tasks for money, to ask hundreds of parents about whether they would punish a child in a variety of hypothetical situations.

Shavell has two grown children of his own. His bottom line: “The principles under which parents discipline their children resemble those of criminal law,” as he wrote in a working paper about his research that was issued recently by the National Bureau of Economic Research.

Likening children to criminal suspects may sound harsh, but the idea is largely uncontroversial: Parents, like judges, try to determine fault. If a child knocks over a juice glass through an innocent blunder, there’s usually no punishment. If she knocks it over while playing with a toy car after being told not to, that’s a problem. In fact, if she is caught behaving recklessly, she might get punished even if the juice glass miraculously stays upright.

Contrast this unwritten parental code of justice with another theoretical possibility: Children get punished for any harm they cause, regardless of whether it’s deliberate. The girl in the previous paragraph would always be punished for spilling juice, whether it’s her fault or not. And she would never be punished if she didn’t spill the juice, no matter how reckless her behavior. In legal circles, this is known as the “strict liability” standard.

I’d wager that no parent in the world uses the strict liability standard. The very notion “seems beyond our contemplation,” Shavell wrote. Yet strict liability is used in the adult world for certain kinds of torts, which are civil wrongs. If a company sells a defective product that hurts people, the company is fully liable no matter how many excuses and apologies the executives make. Likewise, if a farmer’s goats escape and eat a neighbor’s crops: no excuses.

With strict liability, no time or effort is wasted on finding fault. What’s more, strict liability gives people an extremely strong incentive to prevent harm. Shavell asked me to imagine a driver who’s going at the speed limit in a crowded area at night and hits a pedestrian. A judge or jury might find the driver not at fault. But if the driver knew he was being held to a strict liability standard, he would be more likely to slow down, check the mirrors or maybe not even drive through that crowded area at night. “Under strict liability, you would internalize risks and take precautions that courts don’t have any chance of glomming on to,” he told me. The world would become a safer place.

It’s no surprise that economists tend to like the strict liability standard, Shavell said. “In economics, it’s standard to say that making people pay for the harm they do is a better route toward increasing social welfare,” he told me. As an economist at a law school, he has written several scholarly articles about the advantages of the strict liability standard himself.

But Shavell said he understands why it’s not a good fit for parents. For one thing, he pointed out in his working paper, parents care about more than just preventing harm. They also care about the cost of enforcing rules; disciplining children is emotionally costly to both the children and the parents. And parents care about teaching children right from wrong. Children don’t learn right from wrong if they’re punished for innocent mistakes and exempt for bad behavior that by luck does no damage.

The priorities for parents when disciplining their children for bad behavior are similar to the priorities for society in criminal cases, Shavell wrote. For instance, imprisonment is costly not just for the prisoners but also for the taxpayers who have to build and staff the prisons. Yet prisons are necessary because violent criminals aren’t dissuaded by fines.

Shavell was a professor in Harvard’s economics department when he jumped to the law school in 1980. “At the law school when you talk about social policy, it’s usually put in moralistic terms,” he said. “There’s some acknowledgment that consequences matter, but that’s not the way they organize their thinking.”

Shavell said his economics training makes him focus on consequences, which is why strict liability appeals to him. “But the longer I live, the more I believe that’s not the way most people think,” he said. “Economists are oddballs.”

The Readers Write

Thank you for writing a defense of neckties. Most people enter into public resembling skid row bums who have been on a three-day bender. Please! No one is so important that he or she is too busy to attend to a minimal level of presentability. Resurrect the necktie, bury baseball caps on anyone older than 6 and, for God’s sake, bring back pantyhose.

Barbara Anne Dickie
Portland, Ore.

I was required to wear a necktie, clip-on of course, on my first day of Catholic school in 1957. Excepting four years of college and some pandemic time, I wore a necktie five days a week until my retirement in 2020. A tie makes no one smarter, more industrious or more ethical. I say kudos to leaders like Steve Jobs and Volodymyr Zelensky who have led us out of the wilderness of all men trying to look like they came out of the same box.

Ken Kowalewitz
South Hero, Vt.

My secret “happy thang” is gaudy socks. I work for a very conservative company as a security guard and that is my little rebellion.

Marsali MacIver
Vernon, British Columbia

Quote of the Day

“I approach a problem with a detective’s frame of mind. My big hero is, of course, a fictional character, but it is Sherlock Holmes.”

— Carmen Reinhart, in a podcast with the Federal Reserve Bank of St. Louis released on July 17, 2019

How Do We Decide When to Punish Our Children?

A Harvard economist found parallels in criminal law.

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