Sunday, July 27, 2008

Punishment: Retribution, protection, reform

The United States Supreme Court has decided that execution is too harsh a punishment for a man who raped his stepdaughter at age 8. Execution, the majority of the Court suggested, is appropriate only if the crime committed is murder. Those who take the life of another, the court believes, themselves deserve to die.

Punishment inflicts pain. The murderer or rapist who inflicts pain on a victim, their families and friends must, once apprehended and convicted, be subjected to comparable pain. Punishment serves the cause of retribution or, more plainly, of revenge.

We think frequently that revenge serves the cause of justice. The balance of rights and wrongs is disturbed when persons are assaulted or killed. The balance of rights and wrongs is restored, we believe, when the Courts inflict pain on the rapist or murderer commensurate with the pain suffered by the victims.

All of this seems pretty straightforward: someone harms somebody else, is arrested and tried. Once convicted, the court pronounces punishment commensurate to the crime committed. The victim's suffering is compensated for by the pain inflicted on the perpetrator of the crime.

But sometimes our courts treat lawbreakers who harm others in very different ways. A recent newspaper story reports that a negligent driver who put a bicyclist in the hospital for months was sentenced to probation and 100 hours of community service. The victim, who at first was not expected to survive the accident, and his family expressed disappointment at this verdict. They had hoped that the negligent driver would be subjected to more serious suffering.

Men, arrested for aggressive acts, sometimes against their spouses and children, do not always end in jail but, instead, are sent to take anger management classes. Instead of being made to suffer as they made others suffer, efforts are made to help them become better persons, better citizens, husbands and fathers.

Sometimes, in cases of family violence courts mandate mediation. Here the parties to the conflict--different members of a family--are told by a judge to sit down with a trained mediator to try to work out the family conflict and to come up with some set of commitments for future behavior that would avoid a repetition of previous violent episodes. The hope is that mediation can reestablish good communication within the family and help them find new and less destructive ways to overcome conflicts that arise inevitably where people live together in close quarters.

Community service, anger management, mediation--three attempts to try to prevent recurrence of crimes by trying to get at the causes of injuries brought about by negligence, by anger out of control, by the breakdown of family communication. Here we see a very different way of thinking about law breaking. Here the focus is not on retribution, on balancing pain inflicted by the pain of the perpetrator. Instead everyone tries to prevent recurrence of negligent injury, of uncontrolled rage, of physical violence instead of dialog.

Not everyone may be able to reform. Lawbreakers who are expected to commit further outrages should be confined in order to protect society. They may be locked up for a long time or, if we believe it necessary for ever. But notice that their imprisonment also is not in order to punish them, to inflict pain to balance the pain they have inflicted on others, but to protect all of us against them. The purpose is not to make them suffer to keep us safe.

It is not obvious that matching pain with pain is the only, let alone the best way of dealing with social conflicts and break downs that end up in court. In some situations long term confinement for the sake of protecting everyone, not punishment is the purpose of imprisonment. In others we consider it preferable not to inflict more pain than has already been caused but to try to remedy personal and social malfunctions by trying to change persons or social systems such as a family constellation.

This is not a new idea. When the Women's Prison in Framingham, MA was first established in the early 1900s, women who were mothers could have their children with them. The prison had an extensive school program. The entire effort was directed towards offering wider opportunities to the inmates in the hope that, once released from jail, they could make a better life for themselves, than the life they had before that ended up with their incarceration.

The Supreme Court decision takes for granted, without question, that punishment, retribution, revenge are the proper ways of dealing with crime. But while that may be satisfying to those affected by crime, it is not in the interest of the society as a whole. We want a world with less crime, less violence, fewer careless injuries of others. We want a world where fewer persons are out of control, unable to live satisfying and positive lives and therefore looking for opportunities to inflict pain on others. The interest of the society is in keeping everyone safe and, for the rest, in reform, in education, in trying to help persons in conflict with their neighbors and the law, to improve their lives so that they can be less destructive, happier and can make a contribution to society. The society as a whole does not improve when pain is avenged by causing more pain.

But, you say, what about the victims? If someone rapes and murders your child must you then stand by to see the courts and the prison system try to help the rapist and murderer to learn to live a better life? Are you not entitled to some minimal consolation for your loss?

Yes, you certainly are. But is the best that we can do for the victims of crime to feed their anger and deep pain by judicial murder? Concern for the victims of crimes is of course essential. But so far all we do is to allow them to witness the execution of the person who inflicted such terrible pain on them.

There surely are better ways of helping victims of crime to rebuild their shattered lives.