Punishing Criminals

...A similar objection can be made to stigmatizing punishments, such as the military dishonorable discharge: we can hardly injure the good reputation of those who have none...

...The debate probably began when Homo sapiens, or possibly Homo erectus, perceived (or thought he perceived) a significant difference between himself and the other animals...

...The street criminal is seldom thrifty...

...Van den Haag is almost certainly right in saying that there would be far fewer crimes if potential criminals were convinced that they ran a substantial risk of punishment...

...as was the institution of slavery [and] equally subversive of the brotherhood of man...

...not more than one in fif or a hundred serious crimes is punishe The deterrent effect of punishment thus hard to prove statistically, but vi den Haag has thoroughly surveyed tl best data available, and on such studi as have been made he bases a convinci estimate that if about thirty percent crimes are actually punished, the cidence of such crimes will decrease si...

...Van den Haag'swork cannot be condensed and summa rized: There is no fat to be fried out of hi: literary style...

...Unfortunately the pious belief that punishment is immoral, that the only real criminal is a heartless and oppressive society, is by no means limited to the New York Review of Books set...

...Van den Haag quotes Nietzsche' s observation that writers "are in the habit of taking the side of criminals...

...But perhaps the FBI or the Bureau of Prisons could mount a covert operation...

...I have myself more than once heard an Ivy League student, trained to view criminals with warm compassion, express an earnest desire to get his hands on the victim of oppression who had taken his watch and wallet at knifepoint or stolen his stereo...

...The privacy of the home has been invaded, and the murderer goes free...

...If we are to >ck up a significant part of the criminal opulation, we need much more prison pace and much better trained and paid taffs...

...One possible and r tial explanation is that at the beginning the period most poor and ignorant p ple, lived in rural areas where opr tunities for crime were fewer than...

...He fairly deserve Juvenal's description, "rara avis in ter ris, nigroque simillima cygno...

...Galleys are no longer in use, we have better sources of power than treadmills, and organized labor would make politically impossible the Roman damnum ad metallas or other forms of hard labor which would otherwise be performed by honest citizens at good wages...

...I am reminded of Pornosec, a division of the Ministry of Truth in George Orwell's 1984, whose mission was covertly to produce pornography and disseminate it among the proles, to keep their minds off politics...

...Criminals over the age of forty are relatively rare, except among the most highly skilled and professional categories, such as securities swindlers...

...It may not matter very much that academics like Anthony Amsterdam and Michael Meltsner want to abolish the death penalty, or that Jessica Mitford feels the same way about penitentiaries...

...The stimulation I have received from reading Punishing Criminals has led me into far too many words...

...The pettiest peace officer would have it in his power, through overzeal or indiscretion, to confer immunity upon an offender for crimes the most flagitious...

...Stu one cause is cultural...

...Van den Haag does not favor corporal unishment, largely because (in his ipacity as psychoanalyst) he thinks that t the last couple of centuries it has be-Noe "sexualized," identified with saism, and therefore disreputable...

...In particular he condemns the rule that evidence, no • matter how undisputed its truth and relevance, must be excluded if it was obtained in violation of the rights (in recent years enormously expanded) of the accused...

...I hop the book will be widely read by lawyers judges, and politicians...

...One other traditional penalty, punitive labor, although much favored in Russia and similar despotisms (where it often amounts to corporal or capital punishment), is of small utility in the United States...

...There is no reason why really dangerous offenses by really dangerous juveniles (above, say, the age of 14 or 15) should not be treated as, seriously as they deserve to be...

...employed as a treatise in universities But I fear there is small chance of th latter...

...So do I, and I would add terrorist nurders, for the pragmatic reason that host terrorists, believing (often rightly) hat their friends will kidnap hostages or itherwise extort their release or that they vill benefit from an amnesty when their ause triumphs, do not fear imprisonnent...

...But money penalties, even when they are proportioned to the convict's wealth, necessarily fall more lightly upon the rich and in any case are not very appropriate for the rank and file of violent offenders...

...I do not recommend a return the spectacles of the FlaVian Amphiteatre, with felons battling lions and tch other in Shea Stadium, nor to the /en more barbarous punishments which tssed for public entertainment and in-ruction in the Middle Ages...

...The book recognizes that both the lant and personnel of our jails stand in eed of great improvement...

...26 The Alternative: An American Spectator March 19...

...solution, but Ernest van den Haag's Punishing Criminals does more to put the questions into focus, to state them objectively and unemotionally, and to summarize the current state of our knowl edge (such as it is) and theories, than any other modern work with which I am acquainted, with the possible exception of James Q. Wilson's Thinking about Crime —which comes to rather similar conclusions...

...The only criminals who are beyond their charity are corporate- executives and the Watergate conspirators...

...24 The Alternative: An American Spectator March 1 :igious vocation, much preferable to ?vashing dishes or sweating in a factory...

...We can say with son thing approaching certainty that poor and ignorant, particularly poor a ignorant blacks, and males between 1 ages of 15 and 25, commit far more ti their share of crimes (or at least of skilled crimes like murder, rape, and ri bery...

...All of these people would do well to suppress their emotions and read Punishing Criminals...

...It is certain that at least since the days of Hammurabi, Solon, and Lycurgus, philosophers, theologians, lawyers, and lawgivers have pondered and disputed the cause and cure of crime, with special emphasis on the limits and purposes of punishment...

...The relatively enlightened and ogressive government of Singaporeregularly resorts to a form of caning with, I have read, excellent effect...

...There are, of course, a limited number )f possible types of punishment...

...We are left, as van den -Iaag concludes, with punishment and leterrence...

...As noted above, I agree with van den Haag that not even the most humane and enlightened correctional confinement is likely to do much to reform the inmates...

...Van den Haag, to the scandal of the pious, actually believes, and is not ashamed to say right out in public, that criminals ought to be punished...

...stantially...

...Sikes and Injun Joe, of course, perished miserably without requiring the services of the public hangman, but Dickens and Twain obviously saw their fates as a sort of divine retribution...

...There is, however, one type of rehabilitation that deserves more attention than it has got in recent years: The propagale Alternative: An American Spectator March 1976 25 Lion of religion—the nuttier the better, so long as it contains plenty of hellfire, and an equal quantity of faith in a glorious hereafter for those who behave themselves...

...Nixon's henchmen...

...The Constitution places more limits on streamlining the criminal process than van den Haag acknowledges...

...A room is searched against the law, and the body of a murdered man is found...

...We are equally unclear about t causes of crime and therefore ab< its remedies...

...At present many judges are under ressure to suspend or shorten sentences imply because they know there is no 30M in the pen, and the government of le inmates is too often left to the more rocious thugs among them...

...Iinwisonment, despite Judge Doyle, Miss tilitford, and like-minded penologists, is till an appropriate penalty for most serius crimes (including those committed by .iveniles), if we acknowledge that its pur,ose is not to reform, which it very rarely oes, but to put the particular criminal ut of circulation and to deter other crimials...

...Speedy trials could be mandated (the Army sets a limit of 90 days on the delay between arrest and court-martial) if more prosecutors, defense counsel, and judges were supplied...

...He believes that the victims of crime are entitled to more consideration than those who prey on them and that swift, certain, and reasonably severepunishment does in fact deter crime...

...Nevertheless, there are many useful things that probably could be done without transgressing the Bill of Rights...

...I am Dt so sure...

...All this 'mild cost money, but not nearly so much s the present rate of crime...

...Van den Haag quotes calls for tougher punishments from such surprising sources as the Village Voice and the director of the Juvenile Rights Project of the American Civil Liberties Union...

...He has made an enormoui addition to the small stock of rationa thinking about crime...

...At least two Justices of the Supreme Court, Marshall and Brennan, believe that capital punishment in any circumstances and for any purpose is "barbarously cruel...

...Punishing Criminals by Ernest van den Haag Basic Books $11.50 A superhumanitarian federal judge, James E. Doyle of the Western District of Wisconsin, speaking from the bench, not long ago called imprisonment for crime "as intolerable...

...I think it unlikely that the debate will soon or ever produce a consensus, much less a satisfactory...

...But a reainable whipping, inflicted privately and -Kier medical supervision, might—par:ularly in /he case of the most danger-is class of criminals, young males-ove a deterrent more effective than, id at least as humane as, our present aces of confinement...

...he may be quite unable to pay any fine, no matter how lucrative his criminous activities...

...A few examples: Juries smaller than the traditional 12 can be authorized, and majority verdicts may be constitutional...

...Considering that Iv is a psychoanalyst, a sociologist, and ; professor, his objectivity and lucidity an truly astonishing...

...The New York Review of Books recently published a piece by one Kirkpatrick Sale denouncing the Watergate prosecutors for being insufficiently ruthless in their pursuit of Mr...

...in many mili crime is seen as a normal and even pi *In the last half-century the percentag poor families in the United States dropped from about fifty percent to aE ten percent, and between 1936 and 1 (van den Haag does not give later figu...

...If they become less criminally inclined while in durance, it is usually merely because they become older...

...There were and are exceptions: Fielding, who was a Bow Street magistrate, never displayed much tendertiess for criminals in either his judicial or his literary work, and Dickens, though full of generous sympathy...

...Shortly after the IRA's renewal of its terror- bombing campaign in London, the New Statesman, whose Weltanschauung is normally not very different from that of the New York Review of Books, carried an article which argued in the strongest language that "death is an appropriate punishment for mass-terrorists both in terms of natural justice and as a deterrent...

...If the place of discovery may not be proved, the other circumstances may be insufficient to connect the defendant with the crime...

...But I am skeptical: I suspect that many muggers and heroin peddlers find their trades more exciting and enjoyable (and less plagued with tax problems) than repairing carburetors...

...A religion sponsored by the state would be unlikely to have any such effect and would anyhow be unconstitutional...

...That cost, too, would be trifling compared with the cost of crime...

...It is probable that only on third to one-half of crimes committed a even reported...

...What is clear is that the elimination of 3overty, ignorance, and "cultural depriration," although obviously a desirable ;oal in itself, is far too slow a remedy (if it s a remedy) for a disease which has be:ome intolerable...

...It is, however, true that the lesser literati, especially in modern times, commonly find pimps and muggers as endearing as Krazy Kat found Ignatz Mouse...

...It could be we...

...It is distressingly common even among lawyers and judges...

...The communicants of some of the most bizarre theologies ever heard of—Jehovah's Witnesses, Mormons, and the like—are notoriously law-abiding...

...such empirical observations o duce to the common opinion that pove is the major cause of crime- That see plausible—but van den Haag points • the unsettling fact that crime rates hi headed for the stratosphere at a ti when the number of poor people, even the gap between poor and rich, I been shrinking...

...Here van den Haag places the blame squarely on the law itself and particularly on the courts...

...the income of the bottom fifth of the ulation increased at a rate about i times as great as that of the top fifth * I am not so sure that there has be( decrease in ignorance paralleling the crease in poverty...

...and therefore prohibited by the Constitution...

...There has undoubti been a rise in the number of people high school diplomas, but in New Y and probably other cities, a high sc diploma may not even mean that its sessor is literate...

...The Black Muslims, except for their habit of occasionally massacring each other, have achieved striking success in turning black convicts into hard-working and honest citizens...

...I doubt that any tbstantial part of the public would deie sexual gratification from the knowlIge that persons convicted of violence ere themselves subject to a degree of Dlence...

...Cardozo's observation has generally been overlooked, especially by liberals...

...Like other men, most of them are quite capable of making, however roughly and even unconsciously, cost-benefit calculations...

...Van den -Iaag favors capital punishment for some :rimes, such as murders committed by :onvicts who are already serving life erms...

...I could myself, given a decent salary and -comfortable working conditions, invent four or five new pentecostal religions between the hours of nine and five on weekdays...

...But it will matter if judges, who have the duty to enforce the law and the power to construe the Constitution, are converted by their impassioned rhetoric...

...Much better, he believes, would be the deterrence of police lawlessness by punishing the police rather than the public...

...Better vocational training would be good in itself and might encourage some convicts to earn an honest dollar when they get out...

...Above all, there should be more and better prisons...

...We do not even know with an thing approaching certainty the size the problem, except that it is large ar larger in the United States .than in oth countries...

...The problem of reforming the law is too vast to be thoroughly canvassed in this review or even in the book itself...

...The Judicious Use of Punishment • Ever since the events chronicled in the third chapter of Genesis, the problem of good and evil and its corollary, crime and punishment, have preoccupied mankind...

...The most extreme zealots may not ear death either, but hanging them at east insures that they will murder no Wore innocent people, and it may have salutary effect on the less fanatical...

...The wild disparity between minimum and maximum penalties and the consequent capriciousness of judicial sentencing could at least be abated: There is much to be said, and the author says it well, for mandatory and uniform sentences for the same offense, without quite so much guessing about what may be best for the particular felon...

...The real problem is that we make so little use of the sanctions at our disposal...

...Van den Haag's cool and logical exposition of the problem is hampered by onefundamental deficiency in the sciences ( criminology and penology: Reliable su tistics are shockingly scarce and pra tically nonexistent until quite model times...

...Van den Haag might have included, among the many pertinent and pungent quotations which he has gleaned from what must be an extraordinarily wide reading, what Benjamin Nathan Cardozo once said about the question: "The criminal is to go free because the constable has blundered...

...The author is, in fact, vox clamantis in deserto academico, for his very objectivity and rationality go strongly against the views now in fashion among the intelligentsia (genuine and brummagem) generally and the professorate in particular...

...With much reason he indicts our system of criminal justice for its inordinate slowness, its obsessive fear that an unjust conviction may somehow occur (and its indifference to unjust acquittals), and its general solicitude for the criminal rather than the victim...

...Imprisonment, fines, death for some offenses, and possibly corporal punishment, could be adequate deterrents...

...ti are in the big cities which they r inhabit.** Other causes, such as origi sin and the simple desire to get sot thing without working for it, are harder to demonstrate or quantify...

...Van den Haag thinks that there should be more use of fines and confiscations, following the example of the Netherlands and some Scandinavian countries...

...for the poor and oppressed, had no more objection to hanging Fagin and Bill Sikes than Mark Twain had to hanging Injun Joe...

...It is perhaps encouraging to learn that even the most hardened and incorrigible liberals are likely to see things in a new light when they come in close contact with criminals, as by being mugged or burglarized...