Justified Anger; Just Retribution

...Professor Sellin's deterrence statistics, as if the whole question of capital punishment turned on its power to deter...

...It is not by chance that the argument against the death penalty is a modern argument, and only a modern argument...

...If the death penalty does not deter, and if they are unlikely to repeat their crimes anyway, why bother to put them in prison at all...

...In its most exaggerated form—as it appears in the work of psychiatrist Karl Menninger, for example—the only criminals are those who would inflict punishment on those who commit what society now calls crimes...

...If this argument proves anything, however, it proves the opposite of what the abolitionists contend...

...This confirms what our common sense tells us, and these studies have also been confirmed by the most sophisticated analysis yet undertaken...

...It is the job of the law to tame this passion, which the law does by satisfying it...

...So much do we resent him, that not only do we wish to see him punished, but we wish to see him punished by our own hand and for the crime he committed...

...This is rejected by a powerful group of reformers, led, perhaps...

...The Task Force did not take into consideration the proclivity of those who administer and evaluate these programs, especially at state budget time, to exaggerate the efficacy of their own work...

...Why is it that we cannot accept that conclusion...

...A comparison was made of the recidivism rate among those paroled from Ontario prisons and those who served their full time, and the different rate was accounted for by the fact that better risks are selected for parole...

...Moreover, some authorities insist that most crimes are not reported to the police and that only 11/2 percent of all crimes are punished, which is to say that 981/2 percent of the crimes committed go unpunished...

...To them anger is mere selfishness and altogether reprehensible...

...The Crime of Punishment, p. 9...

...For the dignity of human life is displayed in Lincoln's life, and in our punishing of Booth (as we would not punish a dog or a horse...

...This point is well made by Adam Smith: we resent the criminal, he says...

...mere life—just staying alive—lacks significance...

...Our schedules of punishment are an effort to make punishment fit the crime...

...Journal of Political Economy, [May-June, 1973,p.545...

...When we say make the punishment fit the crime, we are plainly not talking about deterrence...

...Scientific studies have shown that most punishment does not accomplish any of the purposes by which it is justified, but neither the law nor the public cares anything about that...

...and mere life—purposeless life—turns out to be life very cheaply regarded indeed...

...An independent re-analysis of the evidence shows "that the positive results in favor of the experimental group over the control group reflected not differences in the delinquent behavior of the boys, but differences in the parole-revoking behavior of the parole agents" (Kasebaum, Ward, and Wilmer, Prison Treatment and Parole Survival, [1971], p. 308...

...but the dignity of human life is not displayed in Booth's life or in Lee Harvey Oswald's life...

...For from Hobbes we learn the right of self-preservation...

...Camus's Meursault (in L'Etranger) killed for no reason at all, at a time when human life is regarded as having no meaning at all...

...Punishing itself is terrible' (Beyond Good and Evil, [Kaufmann trans.] Sec...

...And in that much-honored film, The Godfather," the taking of human life is a regular business practice, like making a bank deposit...

...But there is a point where they come together...

...In this way we exculpate ourselves from the guilt we feel and tell ourselves that we do it to 'correct' the 'criminal' and make us all safer from crime...

...Mere life is a life without dignity...

...It suggests that because of the high costs, murders tend to be committed only by those unable to calculate those costs, and that those able to calculate those costs are less likely to commit murders...

...H.L.A...

...Prof...

...Using a simultaneous equation model for a regression analysis involving some fourteen discrete variables, only three of them having anything to do with punishment, and a mass of crime statistics from most of the states over a period of time (1940, 1950, 1960), Isaac Ehrlich was able to show that the "rate of specific felonies is . . . positively related to estimates of relative gains [the more money to be gained by stealing, the more attempts made to steal it] and negatively related to estimates of costs associated with criminal activity...

...And because they are not guided by the crime, they minimize the crime...

...The law blames when it prescribes punishment for certain acts and when it subjects those who commit those acts to punishment...

...Shakespeare's Macbeth killed for a kingdom, at a time when the world and the lives within it had meaning...

...But Abraham Lincoln is dead...

...Dostoievsky's Raskolnikov killed forprofit during the solid, calculating 19th century, but because of that act he somehow found God and learned that murder is terrible...

...Last summer, for example, a sevenyear-old boy was brutally murdered on the lower East Side of Manhattan...

...This assumes that deterrence is the only possible justification for the death penalty and for punishment in general, that we employ police to prevent the commission of crimes, if possible, but that we employ prosecutors and criminal trials and prisons and executioners to prevent further offenses by those we catch up in this system and to deter others—pour decourager les aut res, to paraphrase Voltaire...

...Mostly it has been chiefs of police who have disagreed and who have insisted that the death penalty is necessary because it does deter...

...and as a result, mere life took on an importance it lacked in the past...

...He says that we "can prevent nearly all of the crime now suffered in America—if we care" (Crime in America [1970], p. 21), and the evidence ofour caring would consist not in trying to deter crime by punishing it more efficiently, but by rehabilitating those who commit it, "Rehabilitation," he writes, "must be the goal of modern corrections...

...Many are the pangs of the wicked, but steadfast love surrounds him who trusts in the Lord...

...What should we do with John Wilkes Booth and Lee Harvey Oswald, killers of presidents...

...But if anger is a natural attribute of the human soul, one is bound to wonder how it will manifest itself when it is denied its legitimate expression, however tamed...

...Is Death Penalty a Deterrent...

...Penalties Reflect Principles II is quite clear, I think, that the schedule of penalties to be found in any criminal code reflects some principle other than deterrence...

...This is so because the greater the penalty, the "higher the costs associated with criminal activity," and the higher these costs, the fewer crimes committed...

...Is it not enough to render him undangerous...

...Retribution constitutes a justification for punishment, and, I shall argue, it is altogether proper to pay hack a murderer in kind...

...Why bother to arrest them...

...One researcher, after assessing a variety of "correctional programs," concluded that, "Post-release outcome was not significantly different irrespective of exposure to any type of group counseling program . " (Ibid., p. 251...

...Be that as it may, what, in fact, is the evidence as to rehabilitation...

...Prevent or Punish...

...201...

...And if deterrence is the only purpose of punishment, why a life sentence for a murderer and a couple of months for aprostitute, who is likely to repeat her offense...

...Berns recently delivered this essay at the Center for Constructive, Alternatives, Hillsdale College...

...Why should these millions of what are regarded as purposeless human lives stand in the way of history, when meaning is contained in history, not in human lives...

...After all, we have to a great extent been led to think that crime is somehow and in some way an illness, and we have lots of doctors around...

...Prisoners are paroled and are counseled, individually and in groups, and are tutored in school subjects, and so on...

...This passion—which he labels resentment—must of course be tamed...

...We punish murder more severely than larceny, even grand larceny, because we regard the taking of a human life as a much more grave offense than the taking of property in whatever amount...

...in fact, a number of recent studies, some of them dealing specifically with homicide rates, show an inverse relation between punishment and the rate of crime...

...Why should human lives, even six or thirty million of them, stand in the way of history...

...By making the punishment fit the criminal instead of the crime, they would do away with the schedule of punishments whereby the more serious crimes are punished more severely...

...But that anger has to be tamed, and the local police alone cannot do it...

...There is good reason to believe that something is wrong...

...It seems to me that this is patently not sufficient...

...To remove it from the law is to reveal a disrespect for human life...

...This is probably not the case...

...So much for rehabilitation...

...Why still punish...

...They have insisted that murder especially is a crime of passion, a crime committed in the heat of passion, or under the influence of alcohol, and therefore, by persons least able and least likely to calculate costs, or the "incentives and disincentives," to use Ehrlich's formulation...

...The law tames that passion, that anger we feel in the presence of injustice, by satisfying it, and it satisfies it when it brings the guilty to justice and when it pays him back...

...Does it deter the commission of homicides, for example...

...The Commission directs our attention to the California Youth Authority Community Treatment Project, which is well known in the field of corrections as the best of the rehabilitation programs...

...A week later a 31-year-old man was stabbed to death by a burglar in his Ninth Avenue apartment, this before the eyes of his wife...

...We tend to forget, however, that in punishing the guilty (when it blames the deed he commits), the law praises those who do not commit the deed...

...We can recognize that point of convergence when we acknowledge that the law works by praising as well as by blaming...

...Menninger, you will recall, claims that "scientific studies" have shown that "most punishment" does not accomplish "any of the purposes by which it is justified," and since it is usually justified on the ground of deterrence, this would mean that punishment does not deter...

...The only thing to do is to kill this man right away, quickly and quietly...

...Punishing somehow seems unfair to it, and it is certain that imagining 'punishment' and 'being supposed to punish' hurts it, arouses fear in it...

...According to the Task Force, the difference is marked and altogether in favor of the effectiveness of the rehabilitation program...

...The President's Commission on Law Enforcement and the Administration of Justice, in one of its task force reports, tried to convince us that rehabilitation works and can be made to work better, and one is inclined to think that this must be so...

...Thenext day, in a nearby neighborhood, a 28-year-old girl was stabbed to death in the doorway to her apartment...

...Unfortunately, this is simply not true...

...have us treat Booth—after all, it is a crime to punish him...

...But there is more in this than immediately meets the eye: that anger is satisfied when retribution is exacted, yes, but that righteous anger is also rewarded when retribution is exacted...

...We punish murder more severely than shoplifting or conspiracies to obstruct justice because we regard murder as a much more serious crime...

...And what would a world without anger be like...

...and the consequences of his murder were terrible: the cosmos turned into chaos...

...they are guided by the criminal...

...The abolitionists are not inclined to accept these findings...

...Retribution in Ill Repute It -is not strange that retribution is held in such ill repute at a time when human life is held so cheap in the literature we read and the films we see, and on which we bestow our prizes...

...We see that easily enough...

...When one allows for the fact that better risks are selected for parole, parolees are no less likely to be re-arrested than those who are discharged [after serving a full term in prison)" (Irvin Waller, Men Released from Prison, [19741, p.199...

...The law praises righteousness and obedience to law...

...and I submit that in that disproportion there is embodied an implicit disrespect •for Lincoln's life, for human life...

...Such a judgment, however, rests on an assumption: that crime is deterred by punishment...

...Nietzsche thought this through and called what he saw in his imagination the world of the Last Man...

...0 righteous, and shout for joy, all you upright in heart " (Psalms 32, vs...

...Hart, in a more guarded statement, says there is no evidence that it does deter...

...And that righteous anger should be rewarded, for its basis is the sentiment that to murder is wrong...

...Would it have been proper to put Lee Harvey Oswald in a minimum security prison, even for life...

...Anger is the sentiment aroused by the sight of injustice, and is therefore intimately allied with justice—and civil society requires justice...

...We commit this crime every day that we retain our present stupid, futile, abominable practices against detected offenders...

...Karl Menninger would...

...The effectiveness of the program is then evaluated by comparing the recidivism rate among these persons and the rate among those who are not paroled...

...I accuse the reader of this—and myself, too--and all the nonreaders...

...and suppose we are successful in his treatment, and after a year, say, we pronounce him cured, he returns to the community promising never to do it again...

...Or not put him in prison at all—after all, do we not know from statistics that murderers are the least likely of criminals to repeat their crime...

...The Crime of Punishment, he entitles his book...

...I insist that we take a life—after due process of law—precisely because we value life, although the abolitionists have heaped so much ridicule on this proposition that it has become unfashionable in our day to say so...

...it is not by chance that no political philosopher argued against the death penalty...

...it must be tamed lest it become simple revenge, the "most detestable of the passions...

...Every other consideration should be subordinated to it...

...But in that schedule is reflected our idea of what is important to man, and what it is to be a man...

...the law praises those who do not murder when it punishes that murderer, and in this way deters murder...

...Then he'll be right back on the street...

...it is not by chance that the argument against the death penalty seems to have come out of Hobbes by way of Beccaria, although Hobbes, of course, did not make it...

...What is of particular interest to me is that in modern times almost the entire argument concerning the death penalty has taken place within the limits of this aspect of the subject...

...and from Hobbes we learn that the first law of nature is to seek peace...

...Hence, the "rate of specific crime categories, with virtually no exceptions, varies inversely with estimates of the probability of apprehension and punishment by imprisonment . . . and with the average length of time served in state prisons...

...This altogether discouraging, but not altogether unexpected, conclusion is confirmed now by the most thoroughgoing study of parole ever completed...

...they are not guided by the crime...

...Our schedule of punishments reflects what we have been made ashamed to admit now, namely, that in addition to the effort to deter crime, we punish in order to pay back, to retribute...

...The law blames murder when it punishes the murderer...

...to agree with this principle is to agree that retribution should play a role in punishment...

...And with respect to murder, "nature, antecedent to all reflections upon the utility of punishment, has in this manner stamped upon the human heart, in the strongest and most indelible characters, an immediate and instinctive approbation of the sacred and necessary law of retaliation" (Theory of Moral Sentiments, (Kelley ed.], p. 99...

...When the abolitionists advocate life imprisonment, instead of the death penalty for murderers, they are quite plainly not concerned with deterrence, because these same abolitionists insist that murderers, in addition to being model prisoners, are, of all criminals, the least likely to repeat their crimes...

...It is not strange that retribution has been made to appear to be the most abominable of sentiments, and that so many tears are shed for the murderers today, at a time when innocent human lives are being taken in ever greater numbers, and are being taken not only in fits of passion, by the amateur murderers, but in cold blood by the professional murderers, and not only by them but by heads of state acting in the name of what they call science, a so-called racial science in the case of Hitler, and a so-called science of history in the case of Stalin and Mao...

...In 1971 there were 5,995,200 index crimes (crimes catalogued by the FBI) reported to the police, and everyone knows that a large number of crimes are never reported to the police...

...These findings suggest that big-city mayors are not wrong to argue for larger police forces and longer sentences for the criminals caught by these police forces...

...by a former Attorney General of the United States, Ramsey Clark...

...The result is that we find the retentionists disputing...

...We feel cheated, he says, if the criminal should die of a fever before he is brought to justice...

...I now quote from The New York Times account of these events (Sunday, August 26, 1973...

...Crime is the Guide Menninger and his colleagues tell us to make the punishment fit the criminal, not the crime...

...All of which means that punishment was meted out in only 5.7 percent of the known cases of crime...

...What about the extent to which crime is deterred by punishment, and especially the crime of murder by capital punishment...

...The abolitionists, following modern thought, want to excise anger from the soul—to get rid of it rather than to make a virtue of controlling it...

...To do away with it, to obliterate it from the law, is to depreciate the importance and the significance of human actions and, thereby, of human life...

...We must love those we call criminals, and out of this love will come treatment and the solution to the problem...

...We commit the crime of damning some of our fellow citizens with the label 'criminal.' And having done this, we force them through an experience that is soul-searing and dehumanizing...

...Be glad in the Lord, and rejoice...

...And why do we continue to resist the arguments of the so-called reformers, usually the psychiatrists, who would remodel the entire system in order to make the punishment (or the treatment) fit the criminal, according to which rule it is entirely possible that the prostitute and the shoplifter will remain in custody longer than the murderer...

...One is reminded of Nietzsche's words writtenalmost a century ago: "There is a point in the history of society when it becomes so pathologically soft and tender that among other things it sides even with those who harm it, criminals, and does this quite seriously and honestly...

...Since Ehrlich dealt with time in prison—that is to gay, the range of punishments did not include the death penalty—we are not entitled to say that he proved the deterrence value of the death penalty...

...News of the Week, p. 6): "On the lower East Side, most residents seemed to agree with the police that the next time a murder suspect is identified, Tuesday's mob scene is very likely to be repeated...

...Something of this is contained in the principle that the punishment should fit the crime...

...The conclusion is inescapable: crime pays...

...There is a widespread feeling that the police, the courts, the entire criminal justice system simply acts out a sort of charade, and that it is up to the community to demand that justice is done...

...Justification of Punishment But does the death penalty act as a deterrent...

...Rehabilitation is the solution: treatment will cure most of the so-called criminals, Menninger says in a chapter entitled "Love against Hate...

...So far I have considered deterrence and retribution as independent justifications for capital punishment...

...in their response, they ignore the enormity of some crimes and the pettiness of others...

...The real justification for punishment is none of these _rational 'purposes,' but irrational zeal for inflicting pain upon one who has inflicted pain (or harm or loss)" (The Crime of Punishment, p. 113...

...The proportion of arrests to crimes reported was only 19 percent, persons charged 17 percent, persons convicted as charged 5 percent, and persons convicted of lesser offenses .9 percent...

...Injustice Arouses Justified Anger That anger is not reprehensible...

...Thorsten Sellin says the evidence shows clearly that it does not, and his findings have been cited around the world...

...Crimes of violence (murder, forcible rape, robbery, and aggravated assault) went up 80 percent...

...I quote another passage: "And there is one crime we all keep committing over and over...

...Can We "Cure" Criminals...

...there is no reason yet to believe—by which I mean, there is no reason in these statistics to believe—that what is wrong could be put right by the imposition of more severe punishments, although there is reason to believe that it might be put right by more punishments, or by a greater rate of punishments, a rate sufficient to allow us to say that crime does not pay, or does not pay so well...

...10-11...

...There is such a gross disproportion between Booth's deed and Menninger's response to it...

...The police caught the man suspected of doing it, and had a hard time protecting him from an angry crowd of local residents...

...they ignore the difference in the magnitude of crimes...

...When the police find him, they'll just say he's a sick man and send him to a hospital for two years,' said . . . a Delancey Street shopkeeper...

...I mean, the police protecting the suspect at the police station cannot tame that anger unless they can assure that righteously angry crowd that the murderer will be paid back...

...We can say, however, that if the death penalty is regarded as the most dreadful penalty—and the abolitionists so regard it—his findings do suggest the deterrence value of it...