FROM ANCIENT MYTHS to modern myths, retribution has played a central role in the resolution and definition of evil deeds. For example, Aeschylus borrowed the ideas for his Orestian tragedy from the dim beginnings of Greek history-an unending cycle of killings in which: King Agamemnon sacrifices his daughter lphegenia for a propitious opening to his military campaign; his Queen Clytemnestra revenges their daughter by murdering the King; in turn, the Queen is murdered by their son Orestes. And the gods are hesitant to condemn any of the killings as totally unjustified.(1)
Modern myths view retribution in a similar way. Take, for example, a modern play, the movie Superman 11-not a tragedy, but a romance which is more typical of today's popular culture:
Superman, having lost his super powers, accompanies Lois Lane as Clark Kent into that great belly of American culture, the diner. He leaves to make a telephone call, she sits up at the counter. A rough character takes Clark's seat and starts to bother Lois. Clark returns, asks the fellow to move, and a brawl ensues. The former Superman gets pummeled, and tastes his own blood for the first time.
The audience sits on edge. Superman goes on to regain his super powers and perform the impossible: he defeats in mighty combat not one, but three evil persons who had equivalent super powers to his own.
The audience lets out a sigh of relief. But the movie is not yet over.
Clark Kent returns to the diner. The same ugly character is there insulting the diner's food. Clark picks a fight with him and-you guessed it-pummels the ruffian into the floor.
The audience cheers loudly. Justice was done! And how the bully deserved what he got!
Why should a superman, one who had won a huge battle with three evil supermen, find it necessary to even up the score with a pathetic earthling? Surely a man so big and powerful could have shrugged it off?
The writers of this movie shrewdly saw that there would have been no end to this story had they not provided this last scene of redress. The need to settle a score, to even up old wrongs is deeply embedded into the meaning of justice in almost all cultures of the world.
This is the "psychological reality" of punishment-as Sigmund Freud called it-and it is well over two thousand years old. Philosophers and legal theorists call it "retribution" or "just deserts. "
Here, justice is equated with the logic of the history and psychology of punishment.
Historically, punishment has always been linked to the crime: it has been made to fit the crime.(2)
Psychologically we feel that the link between the crime and its punishment is right.(3) We recognize that to reward crimes would make us feel extremely frustrated. (Indeed, this may be why so many people feel dissatisfied with our criminal justice system because it does seem to reward many criminals.) And at the very least, to sit by and do nothing about criminal behavior makes us jittery, even though we personally would rather not be those who actually meted out the punishment. Nevertheless, we insist that something be done to criminals who have committed offenses.
In the past, those who vociferously demanded retribution were considered to be conservatives. Today it has become a favorite banner of reformers such as Professor Von Hirsch in his book Doing Justice. In 1976 the Committee on Incarceration with Professor Von Hirsch as its Director, argued for a return to a just deserts model of punishment, claiming, among other things, that it would limit the overall length of time offenders spent in prison. It would replace the "treatment model" of criminal punishment which was blamed for the excesses of the "indeterminate sentence" (that is, the offender was incarcerated until such time that it was thought he was "cured").(4) The Committee argued that punishment according to just deserts would ensure that there were fixed limits to the punishment that could be applied to a particular crime, because the theory of just deserts requires that a person can only be punished:
1. For the particular crime, and only that crime, which he has committed and
2. By a punishment that fits the crime.
In this chapter we will consider the second of these assertions, and save the first for a later chapter since it is a rather more complex issue, and is more closely tied to the specific choice of prison as a punishment.
Fitting Punishments to Crimes
There is little doubt that this task represents the most serious challenge to advocates of the new retribution. Their solution has usually been to give compulsive attention to the fine gradations in the seriousness of offenses, the number committed, and the fine gradations of punishment-essentially gradations of prison. This approach is well illustrated by Professor Dershowitz of Harvard University Law School in his report for the Twentieth Century Fund's Fair and Certain Punishment. But he, along with all the other modern retributivists, failed to break out of the old mold. He took the forms of punishment for granted, unable to overcome the paucity of sentencing alternatives.
Stuck with fines and prison, the new retributivists could only recommend variations in the amount of punishment as the way to solve the problem of making the punishment fit the crime.
The only variations in quality of punishment they considered were those such as probation which, as we have seen, cannot be considered true punishments because they are not painful. We must therefore look again at the question of the quality of punishments.
Reflecting The Crime In The Punishment
The oldest idea of making the punishment fit the crime was to reflect both the quality and gravity of the crime in the punishment.(5) Thus, the hand of the thief was cut off -the old principle of an eye for an eye (often associated with the law of Moses, but the principle can be found to underlie the punishment systems of most cultures). There are many other variations of this theme. In colonial America, garrulous women who nagged at their husbands too much were, appropriately, gagged by the punishment of a metal bridle (called the "scold's bridle") that was placed over their heads and clamped on their mouths-a painful contraption which responded directly to the offense.(6) Another reflection of the quality of the crime in the punishment was to punish a criminal on the very spot where he had committed the offense, a practice in English criminal law up until the 18th century. Or certain parts of the body were identified as the seat of the crime: to cut out the heart of a traitor, remove the kidneys of a thief.
The great Italian poet Dante Alighieri was a master at concocting reflecting punishments. In Dante's Hell, suicides, because they did not respect their own bodies, were turned into trees which were periodically snapped at and chewed by dogs. Thieves who had not respected the distinction between "mine" and "thine" were turned into reptiles, then transformed again into each other, destined never to retain their own true form.(7) How apt, we say. There seems to be something inherently right about the choice of punishment. By "inherently" we mean that we have a "gut feeling" that it is right. This is why the audience cheers so loudly when Superman evens up the score.
Should we go Back to Reflecting Punishment?
-There is much to be said for it, although on first consideration such punishments do appear rather terrifying. But we must have the courage to give our criminals the punishment they deserve. We must not shirk our responsibility. How may this be done?
If we begin on a simple level, we may divide crimes up according to their type. The simplest and most common division is between those of violence (sometimes referred to as crimes against the person) and those of property (usually various forms of theft, larceny, fraud). The only difficulty with this classification is that some crimes such as robbery fit both categories.
There are some other, perhaps minor, difficulties with some kinds of white collar crimes where it is more difficult to decide whether or not the commission of the "crime" was violent or not, even though the consequences come very close to violence. For example, is someone dying from asbestos poisoning because a manufacturer did not take proper safeguards a victim of violent crime?
For the moment, these questions are too difficult for us, but we shall return to them later. It is sufficient to note that as far as the traditional division of crimes is concerned, those of violence and those of property are widely accepted.
Now the simple solution would seem to be as follows. For crimes of violence, the offenders should suffer punishments of violence.
A man who beats up a little old lady surely deserves a thorough beating himself.
Those who rape surely deserve to be raped themselves. It is a great irony that rapes occur in prison with apparent frequency. The injustice is that it is usually not the rapists who are raped, but rather the rapists who continue to rape other inmates. (This is an important fact in relation to prison as an incapacitating punishment which we will consider in chapter 10.)
Those who inflict permanent damage or injury on other persons as a result of these crimes surely deserve to suffer permanent injury themselves.
Those who risk the lives of others (and this includes white collar criminals) surely deserve to have their own lives put at risk. The same may be said of those who kill or injure as a result of drunk driving.
Those who kill should be killed.
Could we face up to inflicting such punishments? The truth is that for some time now, we have not had the courage to inflict violent punishments directly on violent offenders except for certain acts of murder.
We do allow violence as part of the punishment to be inflicted on offenders, but it is entirely indiscriminate. This is the violence that occurs in prison.
In other words we do not take direct responsibility for the infliction of violence as part of the punishment. Rather, we view it as an unavoidable part of prison. It is as if it is the fault of prison that violence occurs, rather than our fault. This is the same thinking that occurred in the middle ages when a form of the death penalty was to set the person adrift in a frail boat. If the boat were brought in on the tide, it was lucky for the offender-Nature had passed her judgment. But if the boat were carried out to sea, and the offender subsequently drowned or starved, again, this was Nature's judgment, and those doing the punishing were considered relieved of the responsibility for the death.
So we must recognize that there are strong historical reasons why it is unlikely that we will take direct responsibility for the infliction of violence to any great degree on offenders, even though it is clear that they deserve it.
And what of property crimes?
Should we say that the reflection of a theft of x amount of dollars would be the extraction from the offender of the same amount of money? Unfortunately, this won't work for a number of reasons.
First, many, if not most, offenders have very meager financial resources. In a large number of cases they are simply not able to pay the money.
Second, the amount of pain that results from a particular fine cannot be clearly specified, because it depends on how much money the offender has, and how much he values it. If he has never had any money to speak of, any amount of fine may mean nothing to him. If he were very rich, it might take a massive fine to have any effect. But when we have to vary amounts according to each individual, we must administer apparently unequal punishments for the same crime (a matter that we will discuss further in chapter 5). It is very difficult to come up with fines that are convincingly and consistently painful, yet they must be painful if they are truly to be punishments and if they are to match the pains caused the victim. (8)
Third, a solution could be to have the indigent offender work off the amount he owed. But this immediately transforms the punishment from one of fines to a variation of community service, or some form of forced labor. So we find that the punishment has become a chronic punishment. It may be that for some thefts-especially large ones-this might be appropriate. But for thefts of middling amount, forced labor would appear to be too chronic a punishment when considered in comparison to one who could pay the equivalent fine. To make such a punishment equitable, therefore, we must insist that all thefts within a particular range, regardless of the economic status of the offender, must be punished with forced labor.
Fourth, we also know that forced labor is least productive. It would become a very expensive way to "repay" the crime. In fact, the State would end up paying for it just as it did in the so-called prison factories that were supposed to pay for themselves at the beginning of this century. Instead they were a dismal failure.(9)
Fifth, there is an even more serious difficulty. How can one morally justify, in a time of severe unemployment, the State providing criminals with jobs that unemployed non-criminals badly need? Does this not reward criminals rather than punish them?
We can see that economic punishments, whether in the form of fines or forced labor, have many defects. Their functions as painful punishments cannot be clearly specified. We would do well to disregard them in favor of other punishments, the painfulness of which we are more certain.
What would these punishments be? They would need to be punishments that were clearly painful, but that were not too chronic in the sense that they could be adjusted to suit the range of seriousness of property crimes. The punishments that most clearly it this requirement are those of corporal punishments that are cute. That is, punishments such as the lash, which inflict an immediate but non-lasting pain upon the offender.
1. We appear to have reached the conclusion that all rimes-whether violent or property crimes-could best be served retributively by various kinds of violent punishments. That is, the mugger should be beaten, the thief should receive a particular number of lashes in proportion to the amount of theft.
2. Even though we have seen that for historical reasons it is likely hat we would not have the courage to go all the way with such punishments, this is not a valid moral reason for rejecting them. Indeed, it is likely that all moral principles worth anything require a great deal of courage if we are to live up to them.
3. Reformers who have had the courage to read this far no doubt re saying to themselves: This is ridiculous! We no longer do this sort of thing! To punish crimes with violent punishments would be to turn back the clock of progress.
But is this why we have prison? To substitute for the administration of violent punishments? Do reformers defend prisons as progress, even though not a scrap of research in this century has been able to say anything good about them at all?
The reformers, as a matter of fact, are half right. Raping a rapist would be going too far. A thousand lashes for even a very serious robbery would be too much. But so is a life sentence for a $229. 11 theft.
Are not all of these punishments clearly barbaric?