The “Kettle Logic” of Mandatory Minimum Supporters
In The Interpretation of Dreams, Sigmund Freud offers the story of a man who is accused by a neighbor of having returned a kettle in a damaged condition. In his defense, the man offers three arguments: “In the first place, he had returned the kettle undamaged; in the second place it already had holes in it when he borrowed it; and in the third place, he had never borrowed it at all.”
“A complicated defence,” Freud writes, “but so much the better; if only one of these three lines of defence is recognized as valid, the man must be acquitted.” The philosopher Jacques Derrida coined this rhetorical device — i.e., using multiple, contradictory arguments in support of the same conclusion — “Kettle logic.”
Observers of debates over mandatory minimum sentencing are already familiar with kettle logic, as opponents of sentencing reform rely on it routinely in defense of the status quo.
Consider one of their favorite arguments in defense of quantity-based mandatory minimum sentences for drug trafficking. Opponents of reform say that judicial discretion to distinguish between, e.g., drug users and drug dealers (or drug dealers and other, more culpable drug dealers, or drug dealers and drug traffickers, or couriers and kingpins, or kingpins and their girlfriends, etc.) is unnecessary because trafficking thresholds — the minimum amount of a controlled substance a person must possess before they can be charged with trafficking and face a mandatory sentence — are high enough that they exclude all low-level offenders. Anyone caught with a trafficking amount is by definition a “major player in the drug trade,” they say.
And then they say, “Besides, prosecutors already use their discretion to make sure that low-level drug offenders charged with trafficking aren’t subjected to mandatory minimums.”
See the kettle logic?
If trafficking thresholds are high enough that they exclude low-level offenders, then prosecutors would never need to use their discretion to make sure mandatory minimums were given only to major dealers. But if prosecutors use their discretion to make sure mandatory minimums are given only to major dealers, then trafficking thresholds aren’t high enough to exclude low-level offenders. (Of course they’re not, but the more important point is that no quantity-based sentencing scheme can rationally distinguish among offenders ex ante.)
It’s possible the folks who rely on this reasoning just don’t see the error in their logic. Another possibility is they see it but they just don’t care. Having never been asked to articulate a compelling argument in favor of the status quo, they’re content to ignore the inconsistency of their position. After all, if incoherent mental spasms are sufficient to persuade the people making the decisions, why would they bother offering anything more intellectually substantive?
For my favorite example of kettle logic, by another guy who thought he’d never need to worry about the implications of his incoherent position, go here.
