IT IS SAID THAT Brunelleschi, the great Italian artist, architect and engineer of the Rennaisance, had to re-examine Rome's Pantheon in order to learn how to build the great Duomo of Florence. The Pantheon was built in the second century A.D. Western Civilization had forgotten over a period of about one thousand years how to build a dome.
The same may be said of criminal punishment today. We have forgotten how to punish-although we are perhaps more fortunate in that our amnesia is only a couple of hundred years old.
If there is any doubt that we are in some kind of punishment crisis-perhaps confusion is a better word-the following examples, one from the everyday world of the criminal court, the other from the highest court in the land, easily illustrate the point.
In a park at Hillside Avenue and 20th Street in the Queens Village section of New York, a radio plays rock music and nineteen-year-old Robert Loftman relaxes, tapping out the rhythm on the grass. Clifford Smith comes by. He's only sixteen, but he acts tough. He objects to Loftman playing the radio. "Get the... out of the park," he orders. Lof tman stands up. Smith warns: "If you take another step, I'll blow you away." Lof tman takes another step. Clifford Smith produces a .38 caliber handgun and pulls the trigger crazily. Twice the gun fails to fire. The third time it finds its mark, and Loftman is struck in the stomach. Loftman subsequently dies. Smith is found guilty of manslaughter and sentenced to five years probation by Justice Kenneth N. Browne of State Supreme Court. D.A. John Santucci of Queens complains that the judge should have given a prison sentence.
Loftman's mother, on hearing the sentence, cries:"There's no justice! He snuffed out my son's life for no reason. Why shouldn't he be made to suffer?.(1)..
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William James Rummel was convicted of theft for a third time, and was prosecuted under the Texas recidivist statute which mandates life imprisonment for anyone upon his third conviction of a felony. The total amount of goods and services Rummel stole came to $229.11. He appealed the conviction all the way to the United States Supreme Court on the grounds that the sentence amounted to cruel and unusual punishment. The court refused to rule that this punishment was grossly disproportionate to the offense. So, Mr. Rummel continues to serve his life sentence (Decided March 18, 1980).' (2)
One can see that the sentences of probation for the murderer and life imprisonment for the three minor thefts are, to put it mildly, unjust. Judges are supposed to be among our more wise and well informed people. How can they-especially in the highest court of the land-affirm punishments of such bizarre proportions?
The answer is that our legislators, our judges, our prosecutors have been thoroughly confused by the twentieth century penologists, who have advocated one reform after another, each reform successively recognized as a failure.
The reformers have tried to water down criminal punishment into non-punitive alternatives such as probation, half-way houses or conjugal visits in prison. Or they have insisted that prison should be a "treatment" rather than a punishment. Indeed the more vocal of them, such as Dr. Karl Menninger in his book The Crime of Punishment, have argued that criminals are "sick," not bad.
There is now a virtual clamor of consensus that these "reforms" have been absolute failures. Prisons have failed to rehabilitate. Offenders have often been worse off "treated" rather than "punished."(3)
In the 1970's the prestigious Committee on Incarceration chaired by Senator Charles Goodell, led a new wave of reform. This was to be a return to retribution and a strict re-orientation of criminal punishment away from treatment and back to punishment.
But these reformers are now drowning in their own solution. Longer and more prison terms have been the logical result of their reforms which now face us with one of the most terrible social problems of today: a veritable archipelago of prisons overflowing with inmates. And they have produced a fiscal bind of considerable magnitude.
The Fiscal Crisis of Prisons
The Attorney General's Task Force on Violent Crime, chaired by former Attorney General Griffin Bell and Governor James Thompson (August 17, 198 1) noted that as of January 1981:
... approximately 315,000 were incarcerated in all state and 51 federal correctional institutions. On any given day, an additional 158,000 persons are being held over in 3,000 jails.(4)
At a cost of roughly $20,000 per inmate per year, this amounts to a colossal annual expenditure of $10 billion. The Task Force Report adds that to accommodate the existing inmate population according to nationally recognized standards of square footage, it would cost an additional $10 billion.
A number of states have tried to address this problem by floating prison bond issues. In the November 1981 election in New York State, a $500 million bond issue was narrowly defeated. Perhaps this is a sign to the experts that the people are not prepared to spend so much money on this form of punishment.
Yet it is undoubtedly clear, when one reads of the many cases like that of Mrs. Loftman's son, that a punishment must be found that can meet with the philosophical challenge of just punishment and that can also go much of the way to solving the fiscal problem of criminal punishment.
The solution lies in the rediscovery of punishment in all its variety, for there are many punishments that do not need the expensive apparatus of prison and which will do the job of administering pain so much better than prison. The answer is really so simple, yet in this century has been lost. We must take seriously what the advocates of retribution have been saying for a long time, but not truly understanding:
Punishment must, above all else, be painful.
Indeed, pain is part of the definition of punishment. The origin of the word pain is the Latin poena, which meant in Roman times, punishment or penalty. Its meaning as a localized and acute sense experience is of relatively recent origin, probably of 17th century England.(5)
In those days punishment was there for all to see. It was publicly intimate and largely physical. Ears were cut off, the whip was applied, and so was the death penalty. These were clear and concrete punishments; there could be no doubt that they were painful.
This is not the case today. We are simply told that so-and-so received "five years," another "two years." What do these punishments mean? What is the concrete difference between two years and five years punishment of prison? We shall see in this book that these sentences have no concrete meaning whatsoever either to the public or to the criminal who is punished.(6)
In other words, the punishment is symbolic, and the great problem is that the powerful need for punishment will not be adequately satisfied with symbolic punishments. They must be concrete. That is, they must clearly inflict pain. This means that we must return to truly painful punishment for crimes.
Does this mean: bring back the whip and the lash? Let's start cutting off the hand of a thief, the tongue of a blasphemer? Or turning back the clock to the tortures of two hundred years ago when criminals were whipped till blood gushed out of their backs and until they collapsed and died? How could any civilized person or society even contemplate such punishments?
If we are to rediscover the significance of pain in punishment we must be prepared to consider all kinds of punishment which clearly inflict pain. Yes, we must reconsider corporal punishment. We must reconsider the infliction of all punishments regardless of the kind of pain, whether mental or physical, that they produce.
Many of these kinds of pain already occur in our prisons. However, they occur by default rather than by design, and this is essentially what is wrong with them. The eminent historian David Rothman of Columbia University has claimed in his book Conscience and Convenience that this state of affairs exists because of lack of money to deal with them. But, while an important factor, this explanation fails to penetrate the veneer of excuses we have invented during the course of this century, for the failures of our correctional system.
The fundamental reason for the mess we are in is that there is no clear purpose to our use of punishment.(7) This is because we have lost the art of matching crimes to their punishments which our forefathers were most adept at doing. The reason we have lost this art is that the prime ingredient in translating the crime into its punishment has been cast aside.
That ingredient is pain.
We must see that pain is not only the prime ingredient of punishment but it is also a necessary condition of justice. For without it there can be no punishment. And there can be no justice without punishment-which was the source of Mrs. Loftman's complaint.
It is also true that too much pain may make a particular punishment unjust. But we shall see that the cases in which too much of it is used result from our failure to comprehend pain in a concrete way, a result, paradoxically, of our having "civilized" our punishments. Today these unjust punishments occur mostly in our irresponsible use of prison, without any clear idea of what kind of pain we wish to administer. The Supreme Court case of Mr. Rummel is a prime example.
This confusion about the use of pain in criminal punishment is well demonstrated by the following quotation from the 1976 Report of the Committee on Incarceration, Doing Justice, a committee comprised of a prestigious body of clerics, laymen, social scientists, and lawyers:
One reason for preferring incarceration is simply that we have not found another satisfactory severe punishment. Historically, the alternative was corporal punishment, but that is worse. Incarceration at least can be divided into weeks, months, and years-and its duration prescribed by standards. Given the numerous possibilities that modern technology affords for inflicting pain and the difficulty of measuring degrees of subjective distress, effectively controlling the use of corporal punishment is virtually an impossible task.
Beyond the question of effective control, corporal punishment poses disturbing ethical problems. Besides any physical pain involved, intentional corporal maltreatment evokes in its victim intense feelings of humiliation and terror.... Ought a civilized state ever to visit such mortifications? Might there not exist a right to the integrity of one's own body, that not even the state's interests in punishing may override?(8)
The confusion is clear. They call corporal punishment "maltreatment," but they do not call prison "maltreatment." They claim that corporal punishment causes humiliation and terror-yet we will see in this book that none of the research substantiates this claim. But it is well established that prison rests on a platform of humiliation and terror. Some criminals may deserve such punishment. Unfortunately, humiliation and terror in prisons occur by default not by design and therefore subject all inmates to such punishments regardless of their crimes.
Not one of the Committee's factual claims is true. Corporal punishment can be controlled because of the very fact that it can be technologically and scientifically administered. It is prison that is out of control, not corporal punishment.
As for the claim that a criminal has the right of integrity over his own body: who are they trying to fool? Such a right is worthless if that body is enclosed in a prison cell, especially if that cell contains other violent inmates who may attack eachother at will.
Given this confusion of our experts about criminal punishment it seems perfectly reasonable for a civilized society to reconsider the painful possibilities of criminal punishment-all the possibilities, including various ways of inflicting pain.
1 .Reported in New York Times, 14 April, 198 1.
2. Rummel v. Estelle, 63 LEd. 2d, 382 (1980).
3. See D. Rothman, Conscience and Convenience (Boston: Little Brown, 1980); also Willard Gaylin et al., Doing Good: The Limits of Benevolence (New York: Pantheon, 1978).
4. These statistics are reported annually in: U. S. Department of Justice. Prisoners in State and Federal Institutions. Washington: GPO, SD-NPS-PSF-5.
5. See H. Fabregga and S. Tyma, "Culture, Language and the Shaping of Illness: An Illustration Based on Pain," Journal of Psychosomatic Research 20 (1976): 323-337. Scholars have traced the word back to about 400 B.C. when it referred to a penalty, specifically a fine. Around 500 A.D. it meant to inflict suffering, and in another sense the opposite of pleasure. Not until 1100 did it come to mean suffering in a general sense (that is, the suffering in hell), and eventually in 1400 to mean suffering of mental as well as physical pain (this no doubt, coinciding with the mental tortures of the Inquisition). The modern meaning of any mental or physical suffering, or that one specifically "had a pain" did not arise until after 1600.
6. Indeed, in this monograph, Professor Wilkins noted that it was not possible for his staff to agree upon what the difference between these sentences really meant. See L. T. Wilkins, Principles of Guidelines for Sentencing: Methodological and Philosophical Issues (Washington: National Institute of Criminal Justice, 1981).
7. See G. Newman, review of Rothman's Conscience and Convenience in Crime and Delinquency (July, 1981): 422-428.
8. A. Von Hirsch, Doing Justice: The Choice of Punishments, Report of the Committee for the Study of Incarceration. Preface by Charles Goodell, Chairman (New York: Hill and Wang, 1976).