LIKE TO KNOW HOW to commit a murder? This is how:
You are both alone in his cell. You've slipped out a knife (eighteen-inch blade, double edged). You're holding it beside your leg so he can't see it. The enemy is smiling and chattering away about something. He thinks you're his fool he trusts you. You see the spot. It's a target between the third button in his shirt. As you calmly talk and smile, you move your left foot to the side to step across his right-side body length. A light pivot toward him with your right shoulder and the world turns upside down you have sunk the knife to its hilt into the middle of his chest.
With this now celebrated passage from his book In the Belly of the Beast, convict John Henry Abbott became a literary sensation. He was interviewed on Good Morning America, and was proclaimed by a New York Times reviewer as "awesome, brilliant..." Norman Mailer wrote a long and laudatory article for the New York Review of Books and campaigned to have Abbott's early release.
Abbott was released in June, 198 1.
In July, 1981 he allegedly murdered 22 year old Richard Adan because Adan, a bartender, would not let him use the staff restroom of the Bini-Bon restaurant. Mailer, his agent Scott Meredith, and various New York editors were quoted in Time Magazine assaying, "How tragic."
"We pretended he had always been a writer," famed author Jerzy Kosinski said. In other words, Abbott had always been a criminal.
The morality scam pulled off by Abbott is common in prison literature. In fact it is almost a literary genre, having taken in people of quite different persuasions. In the 1960's, for example, William F. Buckley helped set free Edgar Smith who attempted murder once released.
The perverted logic of the morality scam goes something like this:
1. Sure, I committed murder and that's why they put me inside.
2. But murder is an heroic act which only tough, exciting, intense guys like myself can commit.
3. Yes, murder is wrong, but what's done is done. I can't bring the person back to life, can I? So why not put my time in prison to productive use?
4. By putting me in prison you are forcing me to lead a demeaning and dangerous life. Don't you know that prisons are terrible places?
5. Let me describe the horrors of prison for you, using my great literary talent. This is the horrible place you have inhumanely put me in.
6. Now, don't you feel guilty for putting me away?
7. Don't you see that I've turned murder into art? How can you sit by and see an artist treated in such a callous and inhumane way?
And so it goes. They plead that they should be allowed to lead productive lives in prison-even be released-rather than to suffer for their crimes. We even see them on television working at their typewriters.
Are they justified in making these claims? From the retributive point of view, we may say definitely not.
Justifying Prison as a Deserved Punishment
We have seen that acute corporal punishments are more justifiable than prison because they can be limited in their effects more easily to the offender, often only to his actions, leaving the offender's life generally untouched. Prison takes over the whole of the person's life, so that we must justify it only on the basis that the offender either (1) has committed a crime of such proportions that only a punishment that punishes the whole of the offender's life is adequate to fit the crime, or (2) the offender has committed so many crimes that we are justified in punishing him as a criminal rather than for his particular crimes.
In actual fact, both these justifications boil down to the same thing: we are saying that either because of the horror of his single criminal act or because of the terrible extent of his past record, the offender may be viewed as a person imbued with the aura of criminality-in other words that he is an evil person. Thus, it is only through a punishment of similar aura that we can hope to match him or his deeds.
There are red herrings that are thrown across the path of this argument by many social scientists. They claim that researchers have been unable to find any consistent differences between offenders (of any kind of crime) and non-offenders. The reply is:
1. The scientific evidence is inconclusive. Some studies find differences, others do not.
2. Their claims are, frankly, nonsensical, for they ignore the most obvious fact that those offenders they compare us with have in fact committed serious violent crimes, usually a lot of them, and it is this fact that sets them apart from the rest of us. While this point might be more difficult to defend if we were dealing with the whole range of crimes from least to most serious, since probably everyone has committed a little crime or two in the past, it certainly does not apply to the extreme end of the scale which is what we are concerned with in this chapter.
Very few of those reading this book would have committed murder, rape or serious assault or burglary. It is this fact that sets us apart from the criminals who deserve prison. We have little difficulty in judging such criminals as bad persons.
In sum, the difference, the essential difference, between those who have committed a lot of crimes, or just one very serious crime, and the rest of us is one of morality. The modern social scientists, because of their amorality have failed to attend to this difference-in fact they try to explain it away.
In the previous chapter we considered doing away with small prison terms, suggesting that only prison terms of 15 years or more should be allowed. While there are good retributive reasons for such a policy, which we will see shortly, there is another important reason: the goal is the make the gap between us and the truly horrible criminals even greater in practice than before. This is the opposite to the social scientists who keep trying to fudge over the line.
Indeed, going to prison should be like reaching a point of no return, like descending into Hell.
Making Prisons Retributive
To understand the true functions of prison, we must understand that, in contrast to acute corporal punishments, prisons work on a person's mind as well as his body. This fits in with a special kind of retribution which may be called religious retribution, and which takes a basic principle of retribution-that only the guilty should be punished-far more seriously than the old retributivists we considered in the last chapter. They were more concerned with rulebreaking than with guilt. In fact it would be more accurate to describe the old retributivists as secular retributivists.
The religious retributivists naturally take the word "guilt" in its moral sense, which is to say that the offender has a guilty mind, and that only by a series of ritually purgative functions can this guilt be assuaged. Therefore, one must not only fit the punishment to the crime, but one must fit the punishment to the criminal's guilty mind, and the first step in the process is that the criminal must be contrite, or at least work towards contrition.
Thus, in answer to those murderers who hypocritically say that "they can't bring back murder victims, so what else can they do?" we say to them: they should suffer the long journey towards contrition. They should work off their guilt, and for some not even a lifetime will be long enough. Surely this is not too much to ask when one considers the innocent lives that they have ruined?
Unfortunately, penologists have lost sight of this important function of retribution, so that they have allowed punishments to destroy souls rather than save them.
Prisons as Soul Destroying
One often hears prisons described as soul-destroying. The experience has been likened to Dante's Hell, and aptly so, for the famous inscription above the gates of Dante's Hell is often found scratched on prison walls:
ABANDON HOPE ALL YE WHO ENTER HERE
Dante's punishments of Hell are eternal. The souls that went to Hell were damned, too far gone, completely lacking in contrition. All crimes were beautifully matched by their punishments. There was no return, no way out. One did not even sink further into Hell, but simply suffered the punishments that had been matched to one's crime through eternity.
In Dante's Hell there can be no end to destruction, which is the ultimate torture. This kind of Hell is experienced by many prisoners who are incarcerated for long periods. Malcolm Braley, felon turned writer, in his book False Starts, noted that many of his inmate acquaintances lost track of time in prison. They were "doing time" but the experience seemed timeless. The tantalizing possibility of release through a parole interview served only to heighten the torture. Many indeed would appear to have abandoned hope.
Prison as Religious Retribution
In Purgatory, Dante, and the Christian religion generally, did not abandon hope, and looked toward the possibility of some kind of salvation, or today we would say cure: salvation is a better word though, since it does not side-step the process of contrition that is inherent in the logic of resolving a crime through its punishment. This is the religious as against the secular version of retribution.
It is the religious version of retribution that we must apply to the criminals we have locked up, because it is only they whom we have seen fit to imbue with the aura of evil. For those receiving acute corporal punishment and other alternatives, we do not make the leap of judgment to say they are truly evil because they have committed a crime or two of middling seriousness. We punish only their acts, we do not judge their persons. We do not want a Draconian system of criminal justice, and so we save our harshest judgments for only the very few who are like, say, Lemuel Smith.
Making moral judgments about the quality of the lives of people is an arrogant undertaking, one that should not be taken too lightly, or too often. But once we have made the judgment, we must have the courage to follow up our convictions.
The religious version of retribution requires basically two things: the crime must be resolved through its punishment, and the punishment must involve long term suffering.(1)
The Judeo-Christian tradition has long recognized the importance of ritual suffering as a way of resolving or assuaging the terrible guilt that must fall upon someone who has committed a crime or crimes of unspeakable horror.(2) Most religions do in fact have some equivalent system for dealing with guilt. The pagan religions of classical Greece and Rome were clear about this. The bloody cycle of retributive vengeance in the plays of Aeschylus (The Orestian Trilogy) could only be stopped by Orestes spending a long period of time suffering in an effort to assuage the guilt of having murdered his mother. The theme is deeply embedded in western thought.
It is the only way that the cycle of vengeance can be stopped. It is the reason why the trappings of justice-the courts, procedures, dress, etc., have a ritual aura about them.
Dante's Purgatory was different from his Hell in another important way. In Hell, Dante isolated and classified groups of crimes and ordered them according to their seriousness, although there is some difficulty in understanding his classification from today's point of view.
In Purgatory, the sins for which one is punished are not so much crimes as sins-the seven deadly sins, one might say-which are seen to underlie all action. The idea is that one must penetrate the depths of the soul if one is to resolve or make up for the crimes that one has committed. The punishment, therefore, must not only match the crime in the manner that has been described throughout this book, but it must also direct itself to certain acts or introspections which will help erase the guilt, or at least atone for the sins that have caused the criminal actions. These sins and their curative punishments, each of them skillfully chosen to fit the sin were, according to Dante:
The clear emphasis of this purgative or curative process is that the individual must be contrite: he must recognize the error of his ways. He must come to want to make amends, and the only way to effect such a transformation since the sins of evil people are so deeply entrenched, is through a long process of suffering. The originators of American prisons, the Quakers, almost understood this when they thought that solitary confinement and the Bible would be enough. But our prisons have long ago lost contact with their religious roots.
Treatment in Wolf's Clothing?
The process just described begins to sound very much like a form of "treatment" and not punishment, if one translates it into modern day terminology. For example, instead of talking about the deeper or inner layers of sin that must be penetrated and brought out into the open, one would today talk about uncovering the unconscious, analyzing the offender's inner motives and conflicts.
If this is so, we are in trouble, because criminologists will tell us that it has been found time and time again that treatment does not work, that all manner of treatment programs have been tried out with offenders and none have been shown to produce results any better than chance. That is, criminals who were treated by some method or another who were released, were reconvicted of a subsequent crime in just about the same proportions as those who were released but were not treated.(3)
But the difference between punishment as cure and the treatment model of penology is substantial. When one reads the punishments described by Dante for those in Purgatory, there is little doubt that they are punishments, designed primarily to teach a lesson in a painful way; to ensure that the offender suffers while he learns, through his punishment, the quality of his crime. The religious-and logical-assumption is that a crime is by definition a hurt (whether to others or to oneself), so it is only through hurt that any understanding of one's crime can be reached. In contrast, treatment does not require that the offender suffer any pain at all.(4)
In sum, the proper punishment for a despicable criminal is one that allows for expiation, for a slow learning through a punishment that expresses his crime. It is essential that the basic sin or sins underlying the crime be played out through its opposite so that the individual will learn the evil of his ways. For the terrible few, this can only be done through a process of pain and suffering.(5) This is obviously a long and time consuming process, and it is why prison is a most appropriate medium for contrition.
Distinguishing Retributive Cure from Treatment
We have heard of the prisoners' claim of their right not to be treated, to be left alone in prison. The Supreme Court case of Bishop forbade the use of behavior modification techniques in prisons. One reason why prisoners have recently objected so strongly to their subjection to all kinds of treatment methods is that the treatment approaches used have lost touch with the moral basis of the character of bad people. They presume not to make judgments about the criminal character of offenders, yet at the same time they claim that there is some kind of mysterious state that is reached which is called "adjusted." Too often this turns out to be adjustment to prison routine or something similar.
Many of these treatments seem to be based on a kind of ethic that it is not right that the criminal is in prison, even though he may have committed a terrible string of crimes. This attitude is fostered by the treatment philosophy taken from the medical profession: the idea that criminals are sick, not bad.
We should do better to look at the problem from a just deserts point of view and ask ourselves, do not these criminals who have long records and have committed unspeakable crimes, deserve to be punished more severely, and in a way that is appropriate to their crimes? We do not seek to "cure" the criminal, but rather for him to atone for his crime. The term of imprisonment must be one that keeps up front, very clearly in view, that the criminal is there to be punished, to have the judge's sentence erased from his forehead, just as was the burden of the seven sins erased from that of Dante as he progressed through each stage of Purgatory.
And although, strictly speaking, according to the old retributivists, one should only match the single crime with the single punishment, it is clear from the religious view of retribution that one must match the despicable criminal's sins with the punishments, not his crimes with the punishments. In other words, one must go beyond the particular offense to the soul of the offender. By this model, one is justified in matching the punishment to the criminal's entire person. Prison is most apt in this regard. It takes over each inmate's total life.
An Indeterminate Sentence?
Lest this be seen as another form of the indeterminate sentence, we should be clear that this cannot be so if we are to be faithful to Dante's Purgatory. There is hope in Purgatory and it is assumed that eventually all will go through to the top of the mount into Paradise. In fact, Dante even spoke of matching particular amounts of time in Purgatory to the amount of time spent as a sinner on earth. Without this limitation on punishment, it would be a punishment the same as Hell, with no hope. By placing finite limits on the duration of punishment, one recognizes that there is hope. Hope, indeed, is the central force underlaying atonement. This is why the initial prison term for any criminal should be finite and of long duration-say 15 years.
Prison as Atonement only Works on the Willing
All of this is based, of course, upon the assumption that the offender undergoing atonement is convinced that what he has done requires atonement, that he is really guilty of an evil act, and in the most severe cases of having led an evil life. If he is not convinced of this, then he is no different from those relegated by Dante to Hell. For it is the unbelievers, pagans and heathens, and especially those blatantly so, for whom Hell is reserved. In the same way, the offender who does not believe in the evil of his act, or at least in the right of the judge to pronounce him convicted of a crime and deserving of punishment-for this offender there is no hope of redemption. His punishment will be eternal and it is for him that we say, "lock him up and throw away the key."
Conversely, should the offender after a short time say, (and really believe) that he is terribly sorry for his crimes, and even beg our forgiveness, we do not release him as though he had been "rehabilitated." He must, even after recognizing his sins, see the whole of the punishment through, for it is only by totally fulfilling the deserved punishment that a complete atonement for the crimes of the past can be made.
Certainly, he should be forgiven for his sins, but only, as Freud once poignantly noted, after he has paid for them in full.
Dante in the 20th Century?
Obviously, prisoners cannot be subjected to the same terrible tortures in prison as Dante dreamed up for Hell and Purgatory. But it is time that we took prison seriously as a punishment, and realized that these few criminals, these bad people, have been sent there for punishment and that is what they should get. The chronic punishment of prison must be made to have some meaning. That meaning must hinge on the criminal's recognition of his crimes. It must require acts of contrition, including acts that respond in a direct way to the sin of the crime.
For example, on the simplest level, it seems morally required that incarcerated murderers should devote their time to saving lives in whatever way possible, and that they should see it as quite deserving that they should risk their lives for others. Their use for risky medical research might well be justified on this basis.
We might also note in passing that the saving of one life to make up for one murder would not be sufficient. We do not try to match the injury to the victim in such a specific way, for this would be merely the reflection of the crime without any analogical or educative function to punishment. The criminal must devote himself to saving many lives, for it is the guilt of his own actions that must be assuaged, not the actual injury to the victim (though of course, it plays a part). In some cases there may simply not be enough time for the most evil of criminals to make up for the guilt of the sins underlying his crimes.
In Conclusion...
If we were to develop a prison-intensive system based on the use of prisons in ways outlined in this chapter, and on strictly limiting prison terms to 15 years or more, it can be seen that prisons would become very harsh places indeed. But at least there would be a clear purpose to their harshness, and we would have to take direct and clear responsibility for what happened in them. This is in contrast to today where we have all kinds of excuses for not taking responsibility for the violence and aimlessness of prison life.
The prison-intensive system also means that the decision to incarcerate individuals is going to be very weighty indeed.
Who is going to make these decisions? Is there not a chance that the numbers will take over for both acute and chronic punishments and we will end up in a worse mess than we are in already?
There are ways that we can make extra sure that this does not happen. But in order to show how this might be done, we must first break down another myth about criminal punishment: that it is unbridled discretion of judges that is the evil cause of our crazily confused and inconsistent punishment system.
1 . Dante Alighieri, Purgatory, trans. Dorothy Sayers (London: Penguin, 1955), especially the introductory remarks on contrition.
2. Those secular readers who object to the use of religion as a model for punishment would do well to ponder the ways in which they use guilt in everyday life. The guilt inducing techniques used by middle class parents in raising their children are nothing but a diluted version of religious retribution.
3. This was the claim, now widely accepted, of the "Martinson Report." R. Martinson, "What Works? Questions and Answers about Prison Reform," The Public Interest 35 (Spring, 1974): 22-
4. Of course, there are some forms of treatment, such as behavior modification, that do inflict pain on the patient: see Chapter 13.
5. Freud, Civilization and Its Discontents.