Does the concept of retribution for its own sake belong in our criminal code?
01-21-2017, 04:31 PM
The high-profile last-minute pardons and commutations by Obama have gotten people talking about striking the right balance between justice and mercy, and about when it's appropriate to say, "There's no point in punishing this man anymore; let him go." The Constitution gives the President untrammeled power to unilaterally make these decisions, but the very fact that so many Presidents feel the need to intervene in so many cases raises the question, is our sentencing system broken?
Conversations about crime and punishment tend to get emotional quickly. Rather than dispassionately weighing the costs and benefits of sentencing people to a certain amount of time for certain offenses, people tend to get angry and say, "Those who break the law deserve to suffer!" or "Can't do the time, don't do the crime! They knew what they were doing was illegal, so whatever lawful punishment they get is just." With various thought-stopping mantras, they shout down those who more calmly point to other countries' less punitive crime control techniques as possible models for reform of the sentencing and penal systems.
I think the root of the problem is the focus of our system on punishment for its own sake. There is a section of federal law, 18 U.S. Code § 3553, that exemplifies this. Called "the parsimony provision" because it limits sentences to what is necessary to accomplish the goals enumerated in that section, its proper application to the facts of the case is debated by lawyers at every hearing at which a sentence is passed upon a convicted federal defendant. It states, in pertinent part:
If I were to revise that section of code, I would completely strike out 18 U.S. Code § 3553(a)(2)(A), the part about the need "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense".
What does it mean "to reflect the seriousness of the offense"? Does that mean putting someone away long enough that the public is protected from the kinds of serious crimes he's shown himself capable of committing, and so that others are deterred from committing similar crimes? If so, then it's redundant with (2)(B) and (2)(C ) above, which already address those issues.
What does it mean to "promote respect for the law"? Does it mean to punish someone severely enough that others are frightened into showing respect for the law by obeying it? If so, then it's redundant with (2)(B) above.
What does it mean to "provide just punishment for the offense"? Does it mean taking away the defendant's ill-gotten gains, and forcing him to give something of value to the victims? Then it's redundant with (7) above.
What it all comes down to, is that retributive justice is window dressing for the benefit of the public. It's making someone suffer, not because it's going to help control crime or benefit the victims in any material way, but rather to satisfy the people's desire for vengeance. The goal of this is so that they'll "respect the law" by believing that justice was done. In other words, when people see a harsh punishment inflicted, they'll want to obey and uphold the law because they believe that the law is fair and good, rather than because they fear punishment. This kind of respect for the law can motivate people to go out of their way to help the police stop crime (e.g. by reporting suspicious activity), even when the law doesn't require them to.
Harsh punishment could have the opposite effect too, though. The defendant and those who care about what happens to him could be enraged by an overly harsh punishment, and consequently disrespect the law. A classic fictional example of this occurs in Les Misérables, when the protagonist ponders the many years of incarceration he received for stealing a loaf of bread:
It's evident from judge-made rules of procedure and case law that judges tend to be terrified of losing the public's support. Unlike Congress, which allows its proceedings to be broadcast on C-SPAN, the federal courts have banned photography and broadcasting in the courtroom, which I believe is in large part because they fear the public's scrutiny and criticism. When appellate courts are reviewing a judge's decision for plain error, one of their considerations is whether the error would, if left uncorrected, affect the "public reputation of judicial proceedings". One of the reasons why appellate courts allow judges to hold people in summary contempt for disorderly behavior in the courtroom is to prevent "'demoralization of the court's authority' before the public." C. Volkert notes, "The American Courts have a long history of displaying their inferiority complex, i.e. their desire to be taken seriously. . . . One of the ways the courts maintain this respect is through the maintaining of order and decorum in the courtroom; a defiant allocution can seriously undermine this goal."
Many unnecessary courtroom rituals and customs, such as rising when the judge enters, or addressing the judge as "Your Honor," basically amount to kissing the court's butt by making a public gesture of respect, or at least obedience. It's a way of reassuring the judge that he's still in control, and that everybody present knows their place, so that he won't feel his authority is at risk of being challenged in a humiliating way, and decide he needs to take some drastic action to demonstrate who's boss. Federal judges also generally expect defendants to apologize, and will typically punish them with more prison time if they decline to, even though there's an obvious possibility that any apologies made under that kind of duress are insincere. For this reason, sentencing proceedings have often been described as Shakespearian theater, with every actor in the play being expected to play their part as scripted. The judge has the superficially contrite defendant tell the audience the moral of the story on his behalf, since it seems more legitimate coming from him.
Harsh retribution against an unsympathetic defendant for the sake of currying the public's favor is just another manifestation of this kind of insecurity on judges' part. When one judge, Aaron Persky, refused to do this, and instead said that Stanford swimmer Brock Turner, convicted of fingering a drunk girl, was not a danger to the public and therefore should be set free after three months, the public outcry apparently demoralized Persky enough that he felt compelled to request reassignment away from criminal cases. Many judges have described sentencing as the hardest part of their job, and it seems some just can't handle the burden when public criticism is added on top of it. A lot of judgeships are handed out by politicians as a reward for political support, and these judges retain their political instincts on the bench, which includes a concern for the public's perceptions.
What would it be like, though, if the state based punishment for crimes on what's scientifically proven necessary for crime control, rather than on the need to satisfy angry lynch mobs clamoring for vengeance? What if we experimented with different sentencing and penal schemes, to see if we could keep crime rates low without have the largest per capita prison population in the world?
Brazil has a 30-year cap on sentences. Even if you're convicted of perpetrating the most grisly and sadistic series of rape-murders, on the most vulnerable victims, that society has ever seen, when your 30 years are up, you walk out the prison gate a free man. Could the U.S. do that, without needing to worry that these oldtimers are going to find new victims? Problem is, any time something like that is proposed, people say that the murderer doesn't "deserve" to ever go free -- even though it's the taxpayers, who committed no crime, who have to pick up the tab for this "justice."
Brazil also lets female prisoners live with their children until their children are done breastfeeding. Would the U.S. be better off if we let children, who have committed no crime, get the health and psychological benefits of this bonding time with their mother? Problem is, any time such proposals are made, people say, "If she didn't want her kid to get fucked over, she should have thought of that before she committed a crime!" (Admittedly, one problem with this system is that when the kids are finally taken away from their mothers, the separation can be traumatic.)
Norway has the cushiest prisons in the world, and seeks to give prisoners dignity and support them in a journey of self-improvement, in preparation for release. Maybe in the long run, this actually reduces crime and saves taxpayers money on re-incarceration. Yet if anyone proposes that the U.S. do that, there's a chorus of, "No! I don't want my tax dollars going to support cushy prisons, while our schools and infrastructure are crumbling!"
Probation has never been proven to help control crime, and our prisons are clogged with former probationers who got caught committing some petty, non-criminal violation of their terms of probation. British penal reformer Joshua Jebb opposed imposing probation on defendants, saying, "To impose police supervision over a poor wretch struggling to find employment is the way to add to his difficulties and throw him back into crime instead of keeping him out of it." Yet judges impose some form of probation in almost all criminal cases these days, because the public just doesn't like the idea of someone walking out of prison a totally free man. The thought that a man who has committed a crime might fulfill his debt to society, and go on to live an ordinary life without intrusive state surveillance and control making his life miserable, doesn't sit well with them because, after all, he did something wrong.
And of course, it's assumed by most Americans that because the U.S. is the greatest nation on earth, whatever policies and systems we have in place now (and the assumptions those systems are based on) must be the greatest in the world as well. Therefore, we obviously have nothing to learn from other countries, right? If they knew anything, they would be the countries with global military, economic, and cultural dominance. But they're not, so that means that they're the ones who should be learning from us, not the other way around. Let them adopt a similar system of draconian mass incarceration, and maybe they too can be great.
Well, we'll see how that works for Duterte.
Conversations about crime and punishment tend to get emotional quickly. Rather than dispassionately weighing the costs and benefits of sentencing people to a certain amount of time for certain offenses, people tend to get angry and say, "Those who break the law deserve to suffer!" or "Can't do the time, don't do the crime! They knew what they were doing was illegal, so whatever lawful punishment they get is just." With various thought-stopping mantras, they shout down those who more calmly point to other countries' less punitive crime control techniques as possible models for reform of the sentencing and penal systems.
I think the root of the problem is the focus of our system on punishment for its own sake. There is a section of federal law, 18 U.S. Code § 3553, that exemplifies this. Called "the parsimony provision" because it limits sentences to what is necessary to accomplish the goals enumerated in that section, its proper application to the facts of the case is debated by lawyers at every hearing at which a sentence is passed upon a convicted federal defendant. It states, in pertinent part:
Quote:18 U.S. Code § 3553 - Imposition of a sentence Wrote:
(a)Factors To Be Considered in Imposing a Sentence.—The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection. The court, in determining the particular sentence to be imposed, shall consider—
(1) the nature and circumstances of the offense and the history and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense;
(B) to afford adequate deterrence to criminal conduct;
(C ) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner;
. . . .
(6) the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct; and
(7) the need to provide restitution to any victims of the offense.
If I were to revise that section of code, I would completely strike out 18 U.S. Code § 3553(a)(2)(A), the part about the need "to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense".
What does it mean "to reflect the seriousness of the offense"? Does that mean putting someone away long enough that the public is protected from the kinds of serious crimes he's shown himself capable of committing, and so that others are deterred from committing similar crimes? If so, then it's redundant with (2)(B) and (2)(C ) above, which already address those issues.
What does it mean to "promote respect for the law"? Does it mean to punish someone severely enough that others are frightened into showing respect for the law by obeying it? If so, then it's redundant with (2)(B) above.
What does it mean to "provide just punishment for the offense"? Does it mean taking away the defendant's ill-gotten gains, and forcing him to give something of value to the victims? Then it's redundant with (7) above.
What it all comes down to, is that retributive justice is window dressing for the benefit of the public. It's making someone suffer, not because it's going to help control crime or benefit the victims in any material way, but rather to satisfy the people's desire for vengeance. The goal of this is so that they'll "respect the law" by believing that justice was done. In other words, when people see a harsh punishment inflicted, they'll want to obey and uphold the law because they believe that the law is fair and good, rather than because they fear punishment. This kind of respect for the law can motivate people to go out of their way to help the police stop crime (e.g. by reporting suspicious activity), even when the law doesn't require them to.
Harsh punishment could have the opposite effect too, though. The defendant and those who care about what happens to him could be enraged by an overly harsh punishment, and consequently disrespect the law. A classic fictional example of this occurs in Les Misérables, when the protagonist ponders the many years of incarceration he received for stealing a loaf of bread:
Quote:Victor Hugo Wrote:
He recognized he was not an innocent man unjustly punished. He acknowledged he had committed an extraordinary and reprehensible act; that the loaf might not have been refused him, if he had asked for it; that in any event it would have been better to wait, either for pity or for work; that it is not altogether an unanswerable reply to say, "Could I wait while I was hungry?"; that, in the first place, it is very rare that anyone dies of actual hunger; and that, fortunately or unfortunately, man is so made that he can suffer long and hard, morally and physically, without dying; that he should, therefore, have had patience; that that would have been better even for the poor little ones; that it was an act of folly in him -- a poor, worthless man -- to grab all of society forcibly by the collar and imagine he could escape from misery by theft; that, in any event, it was a bad door for getting out of misery, by entering into infamy; in short, that he had done wrong.
Then he asked himself if he were the only one who had done wrong in the course of his disastrous story. If, in the first place, it was not a serious thing that he, a workman, could not have found work and he, an industrious man, should have been without bread. If, moreover, the fault committed and confessed, the punishment had not been cruel and excessive. If there were not a greater abuse on the part of the law, in the penalty, than there had been, on the part of the guilty, in the crime. If there were not too much weight on one side of the scales -- on the side of the expiation. If the excess of the penalty were not the eradication of the crime; and if the result were not a reversal of the situation, replacing the wrong of the delinquent with the wrong of the repression, to make a victim of the guilty, and a creditor of the debtor, and actually to put the right on the side of the one who had violated it. If that penalty, in conjunction with its successive extensions for his attempted escapes, were not finally a sort of outrage of the stronger on the weaker, a crime of society upon the individual, a crime committed afresh every day, a crime that was committed for nineteen years.
It's evident from judge-made rules of procedure and case law that judges tend to be terrified of losing the public's support. Unlike Congress, which allows its proceedings to be broadcast on C-SPAN, the federal courts have banned photography and broadcasting in the courtroom, which I believe is in large part because they fear the public's scrutiny and criticism. When appellate courts are reviewing a judge's decision for plain error, one of their considerations is whether the error would, if left uncorrected, affect the "public reputation of judicial proceedings". One of the reasons why appellate courts allow judges to hold people in summary contempt for disorderly behavior in the courtroom is to prevent "'demoralization of the court's authority' before the public." C. Volkert notes, "The American Courts have a long history of displaying their inferiority complex, i.e. their desire to be taken seriously. . . . One of the ways the courts maintain this respect is through the maintaining of order and decorum in the courtroom; a defiant allocution can seriously undermine this goal."
Many unnecessary courtroom rituals and customs, such as rising when the judge enters, or addressing the judge as "Your Honor," basically amount to kissing the court's butt by making a public gesture of respect, or at least obedience. It's a way of reassuring the judge that he's still in control, and that everybody present knows their place, so that he won't feel his authority is at risk of being challenged in a humiliating way, and decide he needs to take some drastic action to demonstrate who's boss. Federal judges also generally expect defendants to apologize, and will typically punish them with more prison time if they decline to, even though there's an obvious possibility that any apologies made under that kind of duress are insincere. For this reason, sentencing proceedings have often been described as Shakespearian theater, with every actor in the play being expected to play their part as scripted. The judge has the superficially contrite defendant tell the audience the moral of the story on his behalf, since it seems more legitimate coming from him.
Harsh retribution against an unsympathetic defendant for the sake of currying the public's favor is just another manifestation of this kind of insecurity on judges' part. When one judge, Aaron Persky, refused to do this, and instead said that Stanford swimmer Brock Turner, convicted of fingering a drunk girl, was not a danger to the public and therefore should be set free after three months, the public outcry apparently demoralized Persky enough that he felt compelled to request reassignment away from criminal cases. Many judges have described sentencing as the hardest part of their job, and it seems some just can't handle the burden when public criticism is added on top of it. A lot of judgeships are handed out by politicians as a reward for political support, and these judges retain their political instincts on the bench, which includes a concern for the public's perceptions.
What would it be like, though, if the state based punishment for crimes on what's scientifically proven necessary for crime control, rather than on the need to satisfy angry lynch mobs clamoring for vengeance? What if we experimented with different sentencing and penal schemes, to see if we could keep crime rates low without have the largest per capita prison population in the world?
Brazil has a 30-year cap on sentences. Even if you're convicted of perpetrating the most grisly and sadistic series of rape-murders, on the most vulnerable victims, that society has ever seen, when your 30 years are up, you walk out the prison gate a free man. Could the U.S. do that, without needing to worry that these oldtimers are going to find new victims? Problem is, any time something like that is proposed, people say that the murderer doesn't "deserve" to ever go free -- even though it's the taxpayers, who committed no crime, who have to pick up the tab for this "justice."
Brazil also lets female prisoners live with their children until their children are done breastfeeding. Would the U.S. be better off if we let children, who have committed no crime, get the health and psychological benefits of this bonding time with their mother? Problem is, any time such proposals are made, people say, "If she didn't want her kid to get fucked over, she should have thought of that before she committed a crime!" (Admittedly, one problem with this system is that when the kids are finally taken away from their mothers, the separation can be traumatic.)
Norway has the cushiest prisons in the world, and seeks to give prisoners dignity and support them in a journey of self-improvement, in preparation for release. Maybe in the long run, this actually reduces crime and saves taxpayers money on re-incarceration. Yet if anyone proposes that the U.S. do that, there's a chorus of, "No! I don't want my tax dollars going to support cushy prisons, while our schools and infrastructure are crumbling!"
Probation has never been proven to help control crime, and our prisons are clogged with former probationers who got caught committing some petty, non-criminal violation of their terms of probation. British penal reformer Joshua Jebb opposed imposing probation on defendants, saying, "To impose police supervision over a poor wretch struggling to find employment is the way to add to his difficulties and throw him back into crime instead of keeping him out of it." Yet judges impose some form of probation in almost all criminal cases these days, because the public just doesn't like the idea of someone walking out of prison a totally free man. The thought that a man who has committed a crime might fulfill his debt to society, and go on to live an ordinary life without intrusive state surveillance and control making his life miserable, doesn't sit well with them because, after all, he did something wrong.
And of course, it's assumed by most Americans that because the U.S. is the greatest nation on earth, whatever policies and systems we have in place now (and the assumptions those systems are based on) must be the greatest in the world as well. Therefore, we obviously have nothing to learn from other countries, right? If they knew anything, they would be the countries with global military, economic, and cultural dominance. But they're not, so that means that they're the ones who should be learning from us, not the other way around. Let them adopt a similar system of draconian mass incarceration, and maybe they too can be great.
Well, we'll see how that works for Duterte.