As a society, we get criminal justice wrong. We have an enormous number of people in U.S. prisons, often for crimes (such as nonviolent drug offenses) that don’t merit long-term imprisonment at all. Recidivism is shockingly high as well. On the face of it, it seems obvious that imprisonment shouldn’t work. Imprisonment is a very negative experience, and a felony conviction has long-term consequences for people who are already economically marginal. The punishment is rarely appropriately matched to the crime, as seen in the (racially charged) discrepancies in severity of punishment for possession of crack vs. cocaine. What’s going on? Why are we doing this? Why are the punishments inflicted on those who fail in society often so severe?

I’ll ignore the more nefarious but low-frequency ills behind our heavy-handed justice system, such as racism and disproportionate fear. Instead, I want to focus on a more fundamental question. Why do average people, with no ill intentions, believe that negative experiences are the best medicine for criminals, despite the overwhelming amount of evidence that most people behave worst after negative experiences? I believe that there is a simple reason for this. The model that most people have for the criminal is one we’ve seen over and over: The Bully.

A topic of debate in the psychological community is whether bullies suffer from low or high self-esteem. Are they vicious because they’re miserable, or because they’re intensely arrogant to the point of psychopathy? The answer is both: there are low-self-esteem bullies and high-self-esteem bullies, and they have somewhat different profiles. Which is more common? To answer this, it’s important to make a distinction. With physical bullies, usually boys who inflict pain on people because they’ve had it done to themselves, I’d readily believe that low self-esteem is more common. Most physical bullies are exposed to physical violence either by a bigger bully or by an abusive parent. Also, physical violence is one of the most self-damaging and risky forms of bullying there is. Choosing the wrong target can put the bully in the hospital, and the consequences of being caught are severe. Most physical bullies are, on account of their coarse and risky means of expression, in the social bottom-20% of the class of bullies. On the whole, and especially when one includes adults in the set, most bullies are social bullies. Social bullies include “mean girls”, office politickers, those who commit sexual harassment, and gossips who use the threat of social exclusion to get their way. Social bullies may occasionally use threats of physical violence, usually by proxy (e.g. a threat of attack by a sibling, romantic partner, or group) but their threats generally involve the deployment of social resources to inflict humiliation or adversity on other people. In the adult world, almost all of the big-ticket bullies are social bullies.

Physical bullies are split between low- and high-self-esteem bullies. Social bullies, the only kind that most people meet in adult life, are almost always high-self-esteem bullies, and often get quite far before they are exposed and brought down. Some are earning millions of dollars per year, as successful contenders in corporate competition. Low self-esteem bullies tend to be pitied by those who understand them, which is why most of us don’t have any desire to hunt down the low self-esteem bullies who bothered us as children. It’s high self-esteem bullies that gall people the most. High self-esteem bullies never show remorse, often are excellent at concealing the damage they do, even to the point of bringing action consequences of their actions to the bullied instead of to themselves, and they generally become more effective as they get older. It’s easy to detest them; it would be unusual not to.

How is the high self-esteem bully relevant to criminal justice? At risk of being harsh, I’ll assert what most people feel regarding criminals in general, because for high-self-esteem bullies it’s actually true: the best medicine for a high self-esteem bully is an intensely negative and humiliating experience, one that associates undesirable and harmful behaviors with negative outcomes. This makes high-self-esteem bullies different from the rest of humanity. They are about 3 percent of the population, and they are improved by negative, humiliating experiences. The other 97 percent are, instead, made worse (more erratic, less capable of socially desirable behavior) by negative experiences.

The most arrogant people only respond to direct punishment, because nothing else (reward or punishment) can matter to them, coming from people who “don’t matter” in their minds. Rehabilitation is not an option, because such people would rather create the appearance of improvement (and become better at getting away with negative actions) than actually improve themselves. The only way to “matter” to such a person is to defeat him. If the high-self-esteem bully’s negative experiences are paralyzing, all the better.

Before going further, it’s important to say that I’m not advocating a massive release of extreme punishment on the bullies of the world. I’m not saying we should make a concerted effort punish them all so severely as to paralyze them. There are a few problems with that. First, it’s extremely difficult to determine, on an individual basis, a high self-esteem bully from a low-self-esteem one, and inflicting severe harm on the latter kind will make him worse. Humiliating a high-self-esteem bully punctures his narcissism and hamstrings him, but doing so to a low-self-esteem bully accelerates his self-destructive addiction to pain (for self and others) and leads to erratic, more dangerous behaviors. What comes to mind is the behavior of Carl in Fargo: he begins the film as a “nice guy” criminal but, after being savagely beaten by Shep Proudfoot, he becomes capable of murder. In practice, it’s important to know which kind of bully one is dealing with before deciding whether the best response is rehabilitation (for the low self-esteem bully) or humiliation (for the high self-esteem bully). Second, if bullying were associated with extreme punishments, the people who’d tend to be attracted to positions able to affix the “bully” label would be, in reality, the worst bullies (i.e. a witch hunt). That high self-esteem bullies are (unlike most people) improved by negative experience is a fact that I believe few doubt, but “correcting” this class of people at scale is a very hard problem, and doing so severely involves risk of morally unacceptable collateral damage.

How does this involve our criminal justice policy? Ask an average adult to name the 3 people he detests most among those he personally knows, and it’s very likely that all will be high self-esteem bullies, usually (because physical violence is rare among adults) of the social variety. This creates a template to which “the criminal” is matched. We know, as humans, what should be done to high-self-esteem bullies: separation from their social resources in an extremely humiliating way. Ten years of extremely limited freedom and serious financial consequences, followed by a lifetime of difficulty securing employment and social acceptance. For the office politicker or white-collar criminal, that works and is exactly the right thing. For the small-time drug offender or petty thief? Not so much. It’s the wrong thing.

Most caught criminals are not high self-esteem bullies. They’re drug addicts, financially desperate people, sufferers of severe mental illnesses, and sometimes people who were just very unlucky. To the extent that there are bullies in prison, they’re mostly the low-self-esteem kind– the underclass of the bullying world, because they got caught, if for no other reason. Inflicting negative experiences and humiliation on such people does not improve them. It makes them more desperate, more miserable, and more likely to commit crimes in the future.

I’ve discussed, before, why Americans so readily support the interests of the extremely wealthy. Erroneously, they believe the truly rich ($20 million net worth and up) to be scaled-up versions of the most successful members of the middle class. They conflate the $400,000-per-year neurosurgeon who has been working hard since she was 5 with the parasite who earns $3 million per year “consulting” with a private equity firm on account of his membership in a socially-closed network of highly-consumptive (and socially negative) individuals. Conservatives mistake the rich for the highly productive because, within the middle class, this correlation of economic fortune and productivity makes some sense, while it doesn’t apply at all to society’s extremes. The same is at hand in the draconian approach this country takes to criminal justice. Americans project the faces of the bullies onto the criminal, assuming society’s worst actors and most dangerous failures to be scaled-up version of the worst bullies they’ve dealt with. They’re wrong. The woman who steals $350 of food from the grocery store out of desperation is not like the jerk who stole kids’ lunch money for kicks, and the man who kills someone believing God is telling him to do so (this man will probably require lifetime separation from society, for non-punitive reasons of public safety and mental-health care) is not a scaled-up version of the playground bully.

In the U.S., the current approach isn’t working, of course, unless its purpose is to “produce” more prisoners (“repeat customers”). Few people are improved by prison, and far fewer are helped by the extreme difficulty that a felony conviction creates in the post-incarceration job search. We’ve got to stop projecting the face of The Bully onto criminals– especially nonviolent drug offenders and mentally ill people. Because right now, as far as I can tell, we are The Bully. And reviewing the conservative politics of this country’s past three decades, along with its execrable foreign policy, I think there’s more truth in that claim than most people want to admit.