Tipsy has a really good blog post up over at his site entitled “Inscrutable Justice.” Go read it. It considers our inappropriate tendencies toward private vengeance in the administration of our public criminal justice system and some further thoughts on whether these tendencies are modeled after certain views about how God administers justice. I love the description of the Calvinist view of the Almighty as sort of a thin-skinned medieval lord who is infinitely offended and of John Edward’s “Sinners in the Hands of an Angry God” as a near-slander of God.
More to the point, however, indulging our natural, individual thirst for vengeance is digression from the public goals of the criminal justice system. Maybe a toxic digression. This came up for me in a discussion over at Kole Hard Facts of Life about the seemingly very light sentence of Anders Breivik in Norway. He was sentenced to 21 years for killing 77 people.
Admittedly, the severity of the punishment is not comparable to the severity of the crime. But, then, really nothing the State could do to Breivik could match his crime. However, it’s not the goal of the State to inflict as much pain on the criminal as the criminal inflicted on the victims. Rather, the goals are to keep the public safe, deter future crime, and – in service of those two goals – rehabilitate the criminal, if possible. Now, I know that the desire for vengeance is a motivating emotion in some who create and administer the criminal law as well as many of the citizens who support the criminal law. But, vengeance is an individual feeling; not a desirable attribute of the State.
So, while I would shed no tears if Breivik suffered a freak accident that caused him to die a painful death; I can’t fault Norway for not codifying vengeance. As I understand it, after the 21 years is up, if a determination is made that Breivik is still a threat to public safety, there are mechanisms in place for extending that sentence. I can’t look at Norway and then at the United States; their relative crime rates; and their relative costs of administering criminal justice and conclude that we know better than Norway how to do these things – even if their public system doesn’t happen to scratch my personal itch for retribution.
“Rather, the goals are to keep the public safe, deter future crime, and – in service of those two goals – rehabilitate the criminal, if possible.”
I don’t think that these are the only goals of the criminal justice system. The goal is also to impose retribution (if you want a term loaded in one way, although the most common term used by theorists), or vengeance (if you want a term loaded in the other direction), or just punishment (if you want the old-fashioned term that no one seems to use anymore.)
Punishment is fundamental to the legitimacy of criminal laws, and it is a mistake to ignore it. While I am generally much more a fan of Norway’s justice system than I am of our own, in this particular case, it is not doing justice because it does not punish Breivik enough for what he did. This is why people (including people in Norway) are not happy about the sentence.
As an American example, consider Susan Smith – the woman who, in the 90’s, murdered her two children by putting them in her car and rolling it into a lake. She later claimed that a black man had carjacked the car, but her actual motive was to get rid of her children so that she could continue dating her wealthy ex-boyfriend who didn’t want a ready made family. Even if a one-year sentence could guarantee that Smith: (1) was rehabilitated; (2) would serve as a deterrent to future child murderers; and (3) would keep the public safe; the sentence would not be long enough. The one-year sentence would not be long enough because she committed a horrible crime and should be punished for it, even if she was rehabilitated, was not a danger to society, and provided a deterrent. It undermines the legitimacy of the laws (and laws against murder are legitimate) to not take them seriously. In the same way the $5 speeding tickets you used to get in Montana for exceeding the 55 mph speed limit by less than 30 mph undermined the speed limit law (although with more justification, obviously).
The problem with the Breivik case is that it does not provide justice for a horrible mass murder of children. Releasing him in 21 years – even if he is rehabilitated and no longer a danger to society isn’t enough. It suggests that Norway doesn’t take its own laws against crime seriously enough, and consequently undermines them.
Now it’s important to keep in mind that while punishment is a goal of the criminal justice system, it is way too easy to get carried away with it. Drug dealers don’t need 30 years sentences. Indeed, the punishment component of *most* nonviolent crimes is probably accomplished in one year, if that. The other goals may take longer, of course. But some aspect of a sentence should be – and always has been – to punish the offender.
And of course there is the question of what to do with someone like Bernie Madoff, who ruined the retirements of thousands of people. It’s a nonviolent crime, although one with terrible effects on thousands of elderly people. Even if we were to prevent him from ever working again (thereby protecting the public), rehabilitate him, and provide deterrence for others, there is still a significant amount of punishment that he deserves. To put it simply, for being bad.
I simply contend that there is nothing we could do to Brevik that would give him what he “deserves.” So, I don’t think the criminal justice system should mete out additional punishment if it doesn’t do any additional good. If the additional punishment will not deter crime any further, will not rehabilitate the criminal any further, and will not in any sense make the public safer; then, what’s the point? Other than indulging our personal and variable tastes for vengeance or retribution?
“she committed a horrible crime and should be punished for it”
Why?
If you were a Christian, you’d know that all people are fundamentally good–which means that those who transgress do so through no fault of their own. Rather, they haven’t been properly educated as to right from wrong, most likely because the typical methods that were attempted on them simply weren’t well-suited for their particular minds.
So no, punishment is NOT appropriate. They need brotherly love and compassion as we try to find a method of moral education that is suitable for them so as to help them get past this unfortunate episode in their lives.
Peter,
Article 1, Section 18 of the Indiana Constitution states the penal code shall be founded on the principles of reformation, not vindictive justice. It is a shame too many have lost sight of this mandate.
Tipsy (??) is right about the religious roots of the desire for vengeance. My sabbatical project was research for a book (God and Country) in which I explored the religious roots of several ostensibly secular policy preferences–economic, welfare, environmental, foreign policy and criminal justice. Calvinism influenced American culture in all of these areas. My Criminal Justice colleagues can point to decades of research showing that more punitive “vengeance” policies are less effective in keeping the public safe, but we clearly don’t make our policy decisions on the basis of empirical evidence.