When I was a sophomore in high school my debate coach gave me John Patrick Shanley’s play Doubt: A Parable to read, knowing I was into its major themes. (For the unfamiliar: the title gives it all away. It’s set in a Catholic school in the 1960s, wherein it’s unclear whether or not a popular priest has molested a boy.) I liked it, but didn’t find it much to chew on mentally; I remember stewing on it for a couple of weeks and then deciding it was a bit of a one-note exercise. But there was an epigram at the top of the play billed as some culture’s parable that stuck with me:

The bad sleep well.

It’s also the title of a not-too-bad Japanese film meditating on similar themes; readers of Akutagawa’s In a Grove (filmic: Rashomon) will be familiar with the Japanese mastery of this particular brand of moral unease.

Now, the deeply religious often (and rightly) object to sentiments like these when they’re the opening gambit for some kind of moral relativism, but I mean to invoke the principle in thinking about policy. Consider the ever-great Leah Libresco:

I’ve been rooting for the cops to not catch the mother who abandoned her baby in a NYC subway station.  Turns out they did, and she’s facing a felony charge for abandonment of a child….The reason I’m feeling queasy about the trial is the poor incentives it creates for desperate parents.  Given her limited options, the woman picked a pretty good place to leave a child…I just don’t know how much use deterrents and harsh penalties are meant to be in cases like this.  Giving up your child is a very powerful natural deterrent already; the state has a very limited ability to meaningfully augment the consequences of this decision.  At a certain point, heavy penalties in these cases seem as futile as punishments for committing suicide (which has also been treated as a felony).  The state should be most focused on deterring murder, abuse, or very reckless forms of abandonment, rather than illegal abandonment.

Leah was pretty much savaged in the comments section, and not in the way women usually are in comments sections; it was easy to see how her readers objected to the notion of a criminal who had committed a crime against a child escaping justice. That’s heavily burdened language, of course: you could as easily phrase it as ‘the notion of a mother who had abandoned her child being left alone.’ Neither phrasing is wrong, but one envisions a certain set of solutions for a particular problem, and the other uses more constant, general terms, supposing (as Leah does) that some problems will obtain regardless of the legal incentives or disincentives we match with them.

Some problems will prevail because you can’t inculcate goodness into people. You can, however, institute order; the legal tools we have are therefore best understood as tools for the creation and maintenance of order. It is not as though order is a morally neutral state; obviously the debate over what constitutes a superior form of order compared to an inferior one is a moral argument, but the point is that the legal tools themselves create order on the macro level, and should not generally be expected to do so on the individual level.

So the question then becomes when looking at legal tools: what kind of a world are we trying to create? But I think this question very often becomes confused with: what kind of people would we prefer to create? There are two problems with this:

1.) People are often worse than their worst acts. I recall a time during college when I was in a grocery store on my own. I’m a small person (shorter than 5 feet, less than 100 pounds) and have a very young-looking face, which I forget. A guy approached me while I was leaning over looking at a lower shelf and told me I looked pretty. I laughed nervously (default response to everything) and the guy said some more stuff, speaking very slowly and softly. I registered that he was asking me if I were there by myself. It then began to slowly materialize that he thought I was a young child on my own, and was making some sort of play for my trust. Of course, I was about 21 years old, so the reality is that all he was guilty of was awkwardly hitting on a 21-year-old. But that wasn’t what he wanted to do; what he wanted to do was worse. Here, where people intend much worse than they actually manage, the law can’t help us.

2.) People are often better than their worst acts. We can probably all reflect on our own lives to fill in an example here, but Leah’s works as well: if a mother who recognizes she is not fit to parent attempts to leave her child to the community outside legal parameters, we can attempt to discipline her into personal moral betterment using the penal carceral system, but this seems to me to threaten to break a butterfly upon a wheel. There is some sound moral reasoning, as Leah indicates, in trying to give a child up among multitudes of people; it can be seen as the modern equivalent of knocking on the door of an abbey and leaving an infant behind. It isn’t a morally perfect act, but neither is it one that seems to me to indicate a deep or totalizing moral depravity.

Therefore I hesitate to see the penal system as one that’s terrifically useful when it comes to inculcating private virtue. Thus when responding to situations like the one Leah cites, I think it makes more sense to look at the totality of our legal tools and ask: what kind of world would I like to see? Certainly one in which this never happens, one of the qualities of which is a world made up of happy, strong families. Since we can’t have a world in which wrongs never happen, all we can do is seek to use the totality of our legal tools to make happy, strong family-making very much possible. The practice of throwing people in prison for long, non-rehabilitative sentences is a recipe for a lot of things — abuse, rape, recidivism, prison profiteering — but it isn’t much of a strategy for the creation or maintenance of strong, happy families.

This is why I am not generally sanguine about the take-a-key-and-lock-’em-up approach to all things I find objectionable, with abortion being my latest example. If what we want in the matter of abortion is mothers raising their kids, then what we absolutely don’t want is to relegate women who have/seek abortion to lengthy, abusive prison sentences, seeing as 61% of women who have abortions have other kids, and one can imagine catching a woman trying to have an abortion in a theoretical abortion-illegal world the throwing her in prison only to eventually separate her permanently from the infant we would’ve liked her to raise. In either circumstance, imprisoning mothers doesn’t give us the world we want. The same is true of Leah’s case: throwing the mother who abandoned her child in prison doesn’t put the family back together.

This is all very inductive. In some situations the use of a carceral system makes sense, though perhaps not one so deeply embedded in profiteering and abuse as ours. But what I’ve tried to sketch out roughly here is a hesitance to rely on disciplinary legal methods for dealing with problems of private virtue while ignoring the overall outcomes of those methods (long an argument in the prison abolition and anti-drug wars movements.) It places one in the strange moral position of navigating a kind of murky, mosaic response to things which are surely problems but are not so surely corrected with penal legal responses. In a lot of policy discourse it can make one appear sympathetic to acts they’re not sympathetic to, and it certainly doesn’t provide the black-and-white finality and moral certitude of advocating tough-on-crime type policies. I think a lot about how to handle issues like these, and I don’t sleep well on them.