Punishing Transgender Robot Criminals

          The Following is an adaptation of my response to a prompt in my "Science, Ethics and Culture" class at Arizona State University, taught by Maria Erspamer in the Fall of 2015. It outlines what I think is the proper grounding for ethics and government.

Prompt:

          Do you feel that transgender inmates have the right to have access to hormone therapy, and why or why not?

Response:

          This question is relatively easy to answer if we start with the premise that the proper grounding of ethical decision making is the prevention of suffering by sentient creatures. This premise leads naturally to what I call “The Protection Theory of Punishment.”


          To protect sentient life, the Protection Theory says we should remove the capacities, freedoms or abilities that enabled a perpetrator of suffering to harm someone, until such a time as that perp demonstrates that she is no longer a danger to others. Thus, a check-kiter would be prohibited from having a checking account until rehabilitated, and a dog which bites someone would need to be held - completely - in captivity until its owner demonstrates that the dog has been trained sufficiently not to be a danger any longer.


          Note that for purposes of imposing punishment, this theory completely bypasses the issue of the mental state, mental capacity, or mental health of the perpetrator, which Silpa Maruri said has been used to justify - for the wrong reasons - prisoners’ access to hormone therapy (807). Under the Protection Theory, all we care about is that a person demonstrably committed a crime, and what freedoms or capacities enabled her to commit this crime. (Admittedly, how we later determine that criminals are no longer a danger does necessitate consideration of their mental state, and is a very tricky and important issue, which parole boards are already grappling with to no one’s satisfaction; but this is tangential to the hormone therapy issue, as will become clear below).


          Now this is the key:  According to the Protection Theory, the only justification for incarcerating someone is to remove the danger they represent to others. Thus, the practical mechanics of incarceration are aimed at danger removal (for example through rehabilitation), not at vengeance, deterrence, or cancelling out the human rights of criminals just to exact “an eye for an eye.” This applies to ALL punishment - everything from restraining a child in danger of hurting himself, to removing weapons from autonomous killer robots. We are removing abilities and freedoms, not acting out angrily ourselves.


          So, under a Protection Theory of punishment we really only need to consider three things when establishing whether inmates should have access to hormone therapy:

1. Does access to hormone therapy enable the inmate to harm others? I say no. Therefore, the Protection Theory does not dictate that we remove this freedom from the inmate. So yes, she should have access to hormone therapy. However,

1. Who is to pay for this therapy? If the taxpayer is forced to pay, that victimizes - imposes suffering - on an innocent person. This violates the Protection Theory. Therefore the inmate or her insurance - which she pays for - should bear the costs. In fact, the inmate should bear ALL the costs of her confinement, unless demonstrably disabled and unable to work. Otherwise, if the inmate doesn’t work but is able, she would not be fed nor clothed nor given any other materials except a cell with no bed (although to be fair, initially the prison should extend enough credit to the prisoners to make it to their first paycheck). Any other action on the part of the prison would impose suffering on taxpayers, who are not responsible for the inmate’s misdeeds, rather than on the inmate, who is. However,

1. As the penal system currently functions, inmates are not paid a living wage for their work. In some states inmates are literally paid pennies an hour, while corrupt corporations and politicians profit greatly. The ability of an inmate to earn a wage comparable to what she could earn in the private sector is not an ability that enabled her to harm others through her criminal acts. Therefore, the Protection Theory says this ability should not be taken away from the inmate.  What kinds of work would be available to the inmate without violating the rights of taxpayers, business owners, prison guards or other stakeholders would need to be decided case by case.  We would also need to decide how wide a range of products or services inmates could purchase without imposing too much of a burden on prisons or on society (again, guided by the principle of protection of the innocent from suffering).  But the important thing is that inmates have both the right and the responsibility to earn a decent living and pay their way through life.  This is also congruent with rehabilitating them.  So the only reasons to deny hormone therapy to inmates would be either that they couldn't pay for it themselves, or that the logistics of providing the therapy endangered guards, doctors, or someone else.  In fact, this treatment endangers no one.

          I have no doubt that if the Protection Theory of punishment were implemented, the implication of it that inmates have ALL the same rights as anyone else, except those that enable them to harm others, or that interfere with their rehabilitation - would lead a great many people to believe we were coddling inmates. However, any other policy would unnecessarily impose further suffering. And it is the elimination of suffering that justifies a proper ethical theory in the first place.

          Protection from suffering is also the only ethical justification for any other government action.  Opinions may differ about the practical applications of a broad Protection Theory of ethics.  But the undesirability of suffering is not, strictly speaking, a theory ... it is a fact which can be experienced directly by anyone who suffers.

Works Cited:

Maruri, Silpa. "Hormone Therapy for Inmates: A Metonym for Transgender Rights."           Cornell journal of law and public policy 20.3 (2011): 807. Web.