WE HAVE BEEN ABLE to distinguish clearly between acute corporal punishments and the chronic punishment of prison, and to make a strong case for their retributive use, the former for property crimes, the latter for violent crimes.
But the facts of life are such that some offenders commit more than one offense, and some become what are sometimes called "repeat offenders." Can we justify punishing a person who repeats his offense more severely than one who commits the offense only once?
This problem would not be so difficult if we punished all offenders with acute punishments, since these punishments do not, by and large, have the side effects that prison does. But the very offenders who repeat their crimes are the ones who currently receive prison as a punishment.
The solution to this difficulty lies in a reconsideration of the theory of retribution.
There are two kinds of retribution which, for want of better names, we may call the "old" and the "new." The new retribution is that advocated by the various reformers of the seventies such as Professor Andrew Von Hirsch of Rutgers University, and Professor Alan Dershowitz of Harvard. The old retributivists are, actually, not that old (at least nowhere near as old as retribution itself!). They advanced their views in the early sixties largely as a somewhat belligerent response to the utilitarian penologists who advocated various forms of the "treatment model" of punishment.(1) In those days the utilitarians characterized themselves as the humanitarians.(2)
Today, the tables have been turned, and the new retributivists claim to act on behalf of humanitarian principles, and that the utilitarians have undermined those principles.
We will deal with these competing claims to righteousness in the second section on this book when we look in more detail at the additional arguments for justifying pain as punishment. For the moment, we must look at the essential differences between the new and the old retribution because it will help us to develop a guide as to when to focus our punitive might upon criminals and when to focus it upon crimes.
Perhaps this seems a bit silly, but how could one punish a crime without actually punishing the criminal? Are not the two the same?
No, they are not the same.
The Old Retribution
The old retributivists insisted that according to "just deserts" the punishment must match only the specific and particular offense that the offender has committed, and nothing else. They meant this quite literally. This meant that prior offenses should be discarded or ignored, and every offense should be considered as though it were a "first offense." Their aim was to limit the effect of the punishment only to the criminal act, and not to punish the whole person.
But surely all acts are performed by persons?
Indeed, this is so, and the problem is made all the more difficult when one considers that "acts" are not entirely observable, since people can have bad intentions which are not fully brought into the open. By and large, the criminal law does not punish people for having only evil intentions without any subsequent actions which result in some kind of harm. Punishment for wicked thoughts has been left to the various religious institutions which have historically taken care of such problems. Nevertheless, a typically criminal act is one which must have two elements or parts to it:
1. There must be a malicious or evil intent which is defined in various criminal codes in many different ways, and of which there are many different degrees.
2. There must be an overt act that can be said to produce the result prohibited by the particular law. For example, the person must be shown to have pulled the trigger of the gun while it was pointed at the victim.
Now, as strained as it may be, the old retributivist insists that the aim of his punishment is simply to deal with the acts, not the persons. He has no interest in "correcting" the offender from his erring ways. Indeed, the extreme advocates of this position argue that by directing the punishment only to the act, they leave the offender untouched, thus providing him with the freedom to contravene the law-an important freedom, perhaps the freedom in a free society.
One of the old retributivists, Professor J. D. Mabbott of Oxford University, gives the example of a time when he was master of a boys' boarding school in England. The rules of the school were that the boys must attend daily prayer sessions. A few boys did not, Mabbott presumed, on principle. He did not believe in prayer sessions either, but because the rules were the rules, Mabbott considered it his duty to administer the punishment to the infractors. It was his duty to punish them, even though he considered the rules to be unjust. It was the boys' right to be punished, and the master expressed great hope that they would see that they were being punished simply because they had broken the rules, not because what they did was necessarily wrong or evil in itself.
The intended effect of the punishment by the old retributivist was therefore simply to punish the act because it was against the rules, and leave it at that. In fact in this case, the master even hoped that the boys would certainly not change their minds or opinions about prayer sessions. The attempt was to divorce the act from the offender, the crime from the criminal. Indeed, one does not think of the offender as a "criminal" at all.
We can see that this position is most congenial to the acute corporal punishments that we have considered so far. These punishments, especially electric shock, are designed to administer an intense pain for a brief duration, and not to have lasting effects. Thus they provide a greater possibility of punishing only the act and leaving the actor minimally affected. Indeed, they are very similar to the situation of the master and his pupils.
Since the offender is viewed as "one-who-has-broken-the-law" and not as "a criminal," this position should also appeal to the radical criminologists. These people claim that the laws are unjust and that they function to oppress minority groups.(3) Non-lasting corporal punishments will not force individuals of any group into lasting submission (a function that radicals say prisons perform only too well). Furthermore, because corporal punishments do not have lasting effects, even if the laws are unjust as the radicals say, the negative effects of this injustice will be minimal compared to those that would result from prison.
It is often speciously argued that corporal punishments are irrevocable. But all punishments (including prison, most of all) are irrevocable. If their effects are not lasting, or leave little permanent damage, then the question of whether they are irrevocable or not is hardly important. Would one rather have had one year in prison or five shocks of 15 volts each ?
Admittedly, the radicals would prefer that such persons were not punished at all. But given the realities of the situation, the fact that it is not altogether clear that the radicals are right either, there is not likely to be an agreement in the near future as to which laws are just or unjust. There will no doubt always be some disagreement, so the question again reduces to: if one is going to be punished unjustly, which kinds of pain would one rather suffer?
Punishing Criminals: The New Retributivists
There is no criminal justice system that would subscribe fully to the position of the old retributivists. This is because there is the strong feeling that those who continue to repeat their offenses are somehow deserving of more severe punishment than those who do not repeat.
It is clear that this feeling cannot be consistent with the old retributivist position, because by punishing for prior offenses as well as current offense, at least two canons of the old model are violated.
First, since we have already punished each prior offense with an appropriate punishment, we cannot justify punishing them again, yet this is in effect what we would be doing if we took prior record into account and increased the punishment accordingly.
Second, the model begins to look very much like the "treatment" model which invokes the past record of the offender in order to make certain judgments as to the kind of person the offender is.
This is anathema to the old retributivists. They see the offender as a person of integrity who has merely committed an act that is defined as a crime. They wish to maintain this personal integrity of the offender by punishing for the particular act, and only that act.
They do not wish to categorize the offender as a special kind of person who is different from everyone else such as a "repeat offender, " "habitual offender" or some other term that is popularly used to set these offenders apart. If they were to do this, we can clearly see that they would be directing the punishment towards the person of the offender, rather than to the act of the offender, thereby violating the freedom of the offender to violate the law.
The new retributivists, especially the Committee on Incarceration, gave up this old precept in favor of penalizing those who were repeat offenders.(4) Their excuses were:
1. That the offender, by repeating his offenses, gave up his right to be treated as an individual, and chose to be treated as a repeat offender.
2. The presence of prior offenses in the offender's record somehow made him more blameworthy for his present criminal act. Yet while it might make him a more blameworthy person, it is hard to see how his criminal act could be seen as more severe in itself, simply because the offender had done it before.
Nevertheless, it is clear that the Committee on Incarceration was attempting to respond to a real feeling that people have that we cannot clearly separate the particular act of an offender from his prior record, so that one must violate the pure principle of the old retributivists in this respect.
This would not be so bad if it were not for the fact that the results of the policy of these reformers have been anything but satisfactory, having generated legislation that is little short of bizarre.(5) We have already mentioned this problem: the fantastic expansion in the use of prison, since the only punishment available to the sentencing judge who must take into account prior record, if there is an habitual offender statute, is to vary the amount of prison. The result has been to produce excessive punishments such as those of the unfortunate Mr. Rummel, since the numbers of the prison sentences are so easily compounded without any comprehension of their concrete significance.
This is a defect in the abstract use of the punishment of prison that we recognized in Chapter 4. We also recognized there that for very serious crimes-and we may now add for offenders who have committed a series of crimes such that it warrants our attaching to them the label "criminal"-we must be prepared to take the risk of using such punishments and try through other means to avoid punishing to excess.
It is clear, though, that there are some persons who do indeed warrant the title "criminal" and who therefore deserve in the retributive sense to have the punishment match their criminality rather than their crimes.
Prison, because it dominates every aspect of a person's life is clearly the appropriate punishment for persons in this category. That is, those who lead a life of crime deserve to receive in return a life of imprisonment.
Who are these individuals?
Dorothy was on her way home from a friend's house, a walk she had done scores of times before. It was sometime during that walk that she met Lemuel Smith who had run out of his house, upset because his parents had forbidden him to marry a local girl.
Dorothy's savagely beaten body was later found in a snow bank.
At age 17, Smith began serving a 10 year term for savagely beating a 25 year old woman with a pipe.
He was paroled when he was 26, and within six months he was arrested for rape and assault and sentenced to 15 years in New York State prisons.
At age 34, Smith was paroled again, and a month later he murdered a store owner and his employee because they would not buy his garish religious paintings.
A month after that, Smith slashed the throat of Joan Richburg in a parking lot, having savagely bitten her neck and breasts.
Some months after that killing, Smith brutally murdered a legal secretary. He repeatedly jumped on her chest and rammed a branch into her vagina, police said.
A month later, Smith raped and robbed an 18 year old secretary.
In 1978 Smith was at last put behind bars, probably for life, although Smith noted that he had "33 years to go before I go before a parole board."
The story is not over. In May, 1981, when Smith was almost 40 years old, he was charged with the strangling of prison guard Donna Payant, mother of two.
When the public thinks of the kinds of persons that they want locked up, the chances are that they have some image that is close to that of Lemuel Smith. And so such persons should be locked up (although the belief that this practice prevents further crime is a myth as we shall see when we compare retribution to other justifications for punishing criminals in Part 2 of this book).
Dr. Doris Graber in her fascinating book Crime News and the Public, has demonstrated that reports like that of Lemuel Smith dominate crime news, so that the public gets a highly distorted and fearful picture of crime and criminality. It is a well-established fact in all of criminal justice research, a fact that has been known for decades, that such criminals comprise only a very tiny portion of all offenders. Even the most conservative estimates suggest that they comprise less than one-third of all those persons currently locked up in our prisons.
It may well be asked, therefore, why is it, if we have known this fact for so long, that we persist in sending so many people to prison who need not be there in that they are not dangerous (that is, not a Lemuel Smith type), and therefore need not be locked up for our protection?
We have seen that one reason is the compounding of prison sentences in the manner by which the numbers achieved a life of their own.
We have also seen that the new retributivists, in calling for punishment rather than treatment, have heightened the public's cry for more punishment, but that the only severe punishment available has been prison.
An additional reason is the failure of modern penologists to address the question head-on from the point of view of the retributive use of pain. That is, the question is which criminals deserve prison as a punishment because of the quality of their crime or crimes, not which criminals should be locked up because they might be dangerous.
Penologists have failed to confront the real issue because they have been preoccupied with a bogus debate about the difficulty and "morality" of trying to sort out those individuals who are dangerous from those who are not, the claim being that because social science has been unable to come up with a reliable or valid way to distinguish such persons, it was therefore not possible to decide who should be locked up and who should not.(6)
Almost all the activity of penologists concerned with this question has been focused on how to improve the accuracy of prediction techniques. In general, the findings are that the experts are between 60 per cent and 90 per cent wrong in their predictions most of the time. The strongest tendency observed among the predictors, who are most often psychiatrists or other clinical types, is to very much overpredict.(7)
The researchers have seen it in their wisdom to criticize this process because of the violation of rights of those wrongly predicted to be dangerous. But this ethic fails to take into consideration the number of innocent persons who may be killed or injured if even one dangerous person is allowed free.(8)
What to Do?
Since we are faced with the fact that the social scientists have not, and will not, be able to predict the future dangerousness of criminals with any acceptable degree of certainty, we would do better to look at other ways to remove from the incarcerated population those offenders who do not deserve prison.
It is important that we realize that the question of whether the offender would or would not really commit the crimes he threatens to commit is comparatively irrelevant to the solving of the problem of whether he should be released or not. The fact that we cannot predict who will be dangerous at a rate any better than chance (except in extreme cases such as Lemuel Smith-but this is usually too late and after much damage has been done), it is better that the public's fear of horrible criminals be the deciding factor in who gets locked up and who does not.
We must therefore allow the local courts and jurisdictions to do the actual sorting out. Although there may be some danger of the local community getting carried away to excess, this system at least would allow the public's fear of crime to be given a good hearing. There are also ways that the propensity to excess can be headed off, or at least controlled, as we shall see in Chapter 8 when we consider the techniques for distributing pain.
In short, we must develop a punishment system that will simultaneously take care of (1) the very strong need (indeed, moral imperative) to punish severely the nastiest of criminals, and (2) the ever present problem that too many offenders will be caught up in this net of evil offenders.
The Solution: Splitting the System
1. A system for punishing only crimes, not criminals. The moral position of the old retributivists is a most compelling one. It does not presume to judge the morality of the acts of the offenders, in the sense that there is no attempt to claim that all laws are moral. It allows for the possibility that the offender may well be acting morally, and seeks not to interfere with the moral integrity of the offender.
The use of acute corporal punishments can therefore be strongly defended on these moral grounds alone, but more importantly, the same amount of punishment would be applied for each offense, even if the offender committed the offense several times.
We have seen that this system of punishment would be most suited retributively to property crimes, although, depending on the attitudes of the local community, on whom the final decision should rest, it might be possible for some minor crimes of violence, especially if they were first offenders.
There is also one great advantage to this approach in that it also lends itself to classifying or defining crimes in terms of "strict liability" rather than to be concerned with the evil intent, or psychological state of the offender. This is because the old retributivist position is concerned essentially only with the criminal act (that is, an act that broke a rule), and not with the internal state of the offender-whether these be principles, beliefs, intentions, mental illnesses or whatever. Thus, the more crimes that are defined in terms of strict liability, the more appropriate would be the use of acute corporal punishments.
Some white collar crimes, in which it is extremely difficult to prove individual responsibility for a particular act, may well be ideal targets for acute corporal punishments of the future, since they are often written in terms of strict liability, stating that it is irrelevant that the individual intentionally did the particular act that led to breaking of the law, but simply that the act occurred, and that is that.(9)
Some criminologists have also claimed that there is an in-between group of offenders who, while not serious habitual offenders, are nevertheless offenders who offend more than just occasionally, and sometimes seriously. These may well comprise those who are often falsely predicted as dangerous. The use of acute punishment is of great potential with this in-between group because it provides a satisfying alternative to punishment that is not as severe as prison, yet is more severe than the other non-punishments such as probation.
Acute punishment provides the possibility to eat into the number of those sent to prison who are not dangerous, but deserve to be punished severely, yet it will also punish some of those who are currently put on probation. It should serve as an excellent punishment for those who fall between the two extremes of prison and probation.
We can see, however, that this brings us to a gray area and we are confronted with the terrible challenge of choosing when to send a person to prison as punishment-or, to put it more accurately, of deciding what kind of person deserves prison as punishment.
One would hope, though, that with the extended use of corporal punishments for property crimes, crimes of strict liability, and for some first offense violent crimes, that the number put in prison would be substantially diminished.
This is clearly a desirable goal from both a moral and fiscal point of view. It is morally desirable because we have seen that the quality of the punishment of prison is deserved only by the relative few who commit crimes of violence or lead permanent lives of criminality. It is fiscally desirable because of the enormous economic costs of prison which we are not prepared to pay-resulting in their morally indefensible overcrowding.
2. A prison-intensive system for criminals. At some point-it will have to be left to each community or local jurisdiction to decide just exactly where-after an individual has repeated his crimes so much that the community decides that he has earned the label "criminal," or when he has committed a crime or crimes of such horror that he deserves prison, the cataclysmic decision must be made: lock him up.
At present, though, it is not a cataclysmic decision. And this is why one important innovation is needed.
The introduction of acute corporal punishment will not be sufficient in itself to achieve the reduction in the public need to incarcerate mainly because, with our present system of sentencing, it would be all too easy for a judge to take the easy way out and choose, say, short prison terms of I or 2 years (are these short?) instead of imposing corporal punishment.
What is needed, therefore, is a system of intensive prison: one in which the only possible sentence of prison is very long-perhaps only life, or if not life a sentence pretty close to it such as 15 years. The result will be that the decision to sentence to prison will become the truly cataclysmic decision that it should be, so that judges and the public will have serious second thoughts about whether to prefer prison as the choice of punishment -(10)
If we choose to do this, to allow only very long prison terms, we must be aware that this is a terrible sentence to be reserved for the terrible few.
And we must also be aware, in our acceptance of prison as punishment, that it has a number of very serious side effects so that it is our heavy responsibility to see to it that prison is put to the best possible use, so as to compensate for these defects.
This means that we must use it retributively.
1. See, for example, J. D. Mabbott, "Punishment, " Mind 48 (1939): 152-167; K. G. Armstrong, "The Retributivist Hits Back," Mind 70 (1961): 471-490.
2. C. S. Lewis, "The Humanitarian Theory of Punishment," Res Judicatae 61 (1954): 224-229.
3. For example, J. H. Reiman, The Rich Get Richer and the Poor Get Prison (New York: Wiley, 1979).
4. See, for example: A. Von Hirsch, "Dese ' rt and Previous Convictions in Sentencing," Minnesota Law Review (April, 1981): 591-634.
5. See Von Hirsch, Doing Justice. Von Hirsch has more recently tried to extricate himself from the errors of that book. In a recent article he blames many of the excesses of the legislatures in fixing determinate prison sentences on "too much enthusiasm and not enough care..." Von Hirsch failed to take into account the psychological realities of retribution. Typically, he treats the issue as a technical problem (that is, a question of who should do the rule making) rather than as a profound cultural problem. See A. Von Hirsch and K. Hanrahan, "Determinate Penalty Systems in America: An Overview," Crime and Delinquency 27 (July, 1981): 289-315.
6. The National Academy of Sciences National Research Council has recently reviewed the research on this topic in Deterrence and Incapacitation: Estimating the Effects of Criminal Sanctions on Crime Rates (Washington, District of Columbia, GPO, 1978).
7. Ibid.
8. This misplaced sentiment is typical of the social science researchers in criminal justice who think they can resolve moral problems by measuring them. As Professor Leslie Wilkins, a recognized authority on sentencing research, recently observed:
The major problem in criminal justice seems at this time to be in the field of moral philosophy rather than of social science methodology. But the effort in recent years has been invested mainly in the latter. Is it time for a change in emphasis?
9. The renowned advocate of this position is Lady Barbara Wooton in Social Science and Social Pathology (London: Macmillan, 1959). The informed reader may question the validity of including the notion of strict liability within the "old" retributive approach, since the old retributivists, including Mabbott, placed so much importance on criminal intent. They were concerned to establish the guilt and responsibility of the offender, especially to show that he chose to commit the crime. However, since it is clear that the secular (in contrast to the religious) retributivists were concerned to leave the actor unchanged as a result of the punishment, it is reasonable to infer that punishing the act and not the actor is commensurate with the "social defense" school which Lady Wooton represents. The bottom line for the retributivists is that the crime be matched by an appropriate punishment. The question of whether crimes are defined in terms of intent or not is largely secondary to this dictum. Once again we see that the assumptions and views of the different schools of thought on criminal punishment are not exclusive of eachother, and may overlap in a number of important respects.
10. This restriction on prison as a sentence has also been advanced by H. Pepinsky, Crime Control Strategies (New York: Oxford, 1980).