A number of recent,
very public events have led me to seriously question the whole idea of
justice. Among these events were the O. J. Simpson trial, the spate
of fatal shootings by children; the "rape" of a 13 year old male
by his 36 year old female teacher, Mary Kay Letourneau (which
liaison, by their design, has resulted in her becoming twice pregnant);
the trial in Boston of the English nanny for fatally shaking to death the
infant in her care; and most recently, the arrest of Stephen Fagan for
kidnapping his young children nineteen years ago (purportedly to protect
them from their supposedly alcoholic mother). One thing that stands out
here is that there is a wide range of opinions about whether and how severely
to punish these perpetrators. For instance, many people thought it was
appropriate that the nanny’s sentence was commuted to time served, while
many others believed that she got away with murder.
I don’t imagine
that you’ve looked at it in this way, but it seems to me that most
of what we see in the movies and on TV--fiction and nonfiction alike, from
the news, Larry King and 60 Minutes, to LA Law, Seinfeld and The Young
and The Restless–actually revolves around this issue of crime and punishment.
(As if to underscore this just now, "the debate on how to punish
children who kill" is being announced on TV.) I am using the terms
and punishment very broadly, from my putting you down or
lying to you in our relationship, on the one hand, to my stealing a car
or committing murder, on the other. As this implies, I am suggesting that
there is a significant connection between these two ends of the spectrum,
although right now I will concentrate only on the latter end.
ages, we have dealt rather simplistically with crime and punishment: We’ve
called certain acts which disturb us offenses or crimes,
and someone who commits any of these acts we consider to be a lawbreaker,
a criminal, and therefore a bad or evil person deserving of punishment.
Fervently--and I think blindly--we believe that justice should be
served, that everyone should be held accountable
for their actions: that perpetrators of crimes should be punished.
This, of course, is the modern version of the very ancient code of Hammurabi:
eye for an eye, a tooth for a tooth.
The way it’s supposed
to work these days is that there are good guys and bad guys. The police
are good guys. Their job is to apprehend the bad guys--the criminals--and
to gather evidence of guilt to be presented at trial, by means of which
we are to discover whether the people on trial have actually committed
the crimes they are accused of, in order that we can punish those who are
But trials are
by design adversarial proceedings: they are fights, contests. The defense
attorney’s aim is to convince the judge or jury that there is sufficient
doubt about whether the defendant is guilty. The prosecutor’s aim is to
convince a judge or jury that the defendant is guilty. This is supposed
to enable judge or jury to decide whether or not the defendant is guilty.
But this actually diminishes the likelihood of truth telling, which was
apparent in the O.J. Simpson case, where it was obvious that the aim was
not to determine the truth in the situation, but to win.)
The adversarial nature of trials, then, diminishes the possibility that
they will be searches for the truth (even if we accept that this is a desirable
In spite of the
supposed simplicity and purported fairness of such a system, the cases
I mentioned at the beginning of this essay make it clear that in practice
it may be neither simple nor fair. In fact it is fraught with pitfalls.
For one thing, many laws are archaic, contradictory, and vague. For another,
we have all broken laws from time to time (for example, speed laws). Further,
police and attorneys, judges and juries make mistakes, and may even have
hidden agendas/ulterior motives; and defendants may make false or coerced
confessions. Judges and juries do not necessarily arrive at the truth:
more often than most of us suspect, innocent people have been sent to jail
and even executed. Perhaps the reason that so many inmates claim to be
innocent is that many of them actually are.
Besides, is it
really so simple to determine who’s to blame for the criminal act? For
example, who’s responsible for the Jonesboro murders? The boys who pulled
the trigger? The parents, teachers or playmates who failed them? The parents
who invited them to use guns? Disturbing playmates? Bad teachers? Television?
Society? Although we’d like to think that there’s a clear, simple answer,
I don’t think there really is. All of these participate; consequently,
it’s really not fair or useful to single out and punish the most immediately
obvious perpetrator of the crime at the end of the chain. And it’s also
ineffective from a systemic perspective, since all the disturbing influences
are still there, still disturbing, even though the boys who pulled the
trigger are in jail.
cannot be sure that those who we have committed to prison will not re-offend
when they are released. In fact, it is actually likely that
they will. Incarceration is most often a brutalizing, demeaning, disturbing
experience which is likely to provide the inmate with an education from
fellow inmates about how to be a more competent criminal, as well as the
passion to be so.
(I speak of incarceration
from some experience. No, I’ve never been incarcerated, but I have spent
time behind bars, teaching inmates college psychology courses at the penitentiary
in Pittsburgh. It was a grim experience. I was terrified each and every
time I entered the penitentiary and all of those huge doors clanged shut
behind me, just like in the movies. I was afraid that somehow I might not
be able to get back out again as well as of the simmering violence that
seemed to permeate everything. It was not difficult to imagine how disturbing
an experience it had to be for the inmates--which, in fact, is what they
related when they told me their stories.)
So when we consider
justice, what should we do with the 13 and 14 year old Jonesboro boys?
They’ve (allegedly) killed five people. Those people are dead. Nothing
we do will restore their lives or ease the pain of the loss for those remaining.
Will it really serve a good and useful purpose to imprison the young perpetrators
in an adult prison for many years, as is being called for. Will it really
be of value to essentially waste their lives? (Juveniles who are incarcerated
with adults are much more likely to re-offend than those incarcerated in
juvenile facilities.) And what about the cost to the community of incarcerating
these two children, who might otherwise grow up to contribute to the community
instead of being a drain?
The people who
cry out for accountability and justice do not recognize that such concepts
are not as logical and workable as they may appear at first. For instance,
what about justice for their parents, who will have to live out their lives
with the pain of having their children in jail? And we rarely assess or
consider the cost of punishment to the people involved in the convicted
person’s life. Yet their lives are often substantially disturbed, as well.
What has resulted is an ever growing population of innocent people whose
lives have been torn apart as a result of the "criminal justice" system.
And in all this,
we have rarely asked why people commit crimes. Yet it seems
to me that this ought to be our starting point. We seem to assume that--apart
from the relatively rare crime of passion--people commit crimes simply
because they believe that they can get what they want this way without
getting caught and punished--without cost; and that, therefore, they can
be dissuaded from this path by threats of punishment.
I suggest that
this conclusion has little basis in reality: that what has happened in
practice is that ever increasing efforts by legislatures and law enforcement
have led to more forceful and refined efforts by perpetrators,
rather than less. (E.g., look at how the so-called "war on drugs" has evolved.)
This is because--except for those few individuals with specific genetic
and physiological pathologies, and perhaps those attempting to correct
injustices through civil disobedience, e.g., civil rights activist--people
who commit crimes have had especially disturbed upbringings. As a result,
they have never bonded lovingly with those around them. They were thus
deprived of the sense of being valued and deserving members of their families
(and later, of their schools, teams, and other "communities") and were
therefore bereft of the sense of interpersonal effectiveness that comes
from being included members of the community, and which we all need in
order to successfully pursue our passions.
I suggest further
that this left them enraged that those entrusted with their care had failed
them, as well as unable to trust that any others could care
about them, and impatient to get what they want even though all but hopeless
about being able to successfully do so "within" the community. With little
hope of belonging and of being valued, they seek instead to satisfy a diminished
set of desires by other-than-legal means, and often join a community of
thieves as a disturbed and counterfeit substitute for the safety and empowerment
of mother’s and the community’s warm embraces.
The threat of
punishment, then, is more likely to simply reinforce a "me against you"
stance than to influence someone to go straight. This is why punishment
has not been and cannot be a generally effective deterrent to crime, and
why the perpetrator, once punished, is very unlikely to somehow
see the light and henceforth lead a crime-free life. This idea that people
will stop being violent/antisocial when they know that there are unpleasant
consequences can be appealing. But, in spite of the fact that the majority
of our population believes that punishment is an effective deterrent, I
don’t think it takes an Einstein to recognize that it really hasn’t worked.
Even though punishment
may be a deterrent for some people sometimes, I suggest that what actually
moves people to violence is not the absence of deterrents, but unexpressed
and discounted personal pain: as long as they are in such
pain, they will most likely do self-defeating, violent things, like cheat,
do drugs, rape, rob and murder in order to flee their pain. And incarceration,
almost always a degrading experience, will rarely rehabilitate and will
almost always occasion increased violence (acting out).
It seems to me,
then, that basing a legal system on the proposition of an eye for an eye
is violent and violence-perpetuating. This is because, in failing to clearly
address the problem of what severed the caring relationship between the
perpetrator and the community (others), it actually contributes
to the failure to keep the perpetrator’s pain from transforming into violence;
and in responding violently to the perpetrator’s violence, it sanctions
In the U.S., for
example, even though sentences have been growing stiffer, the prison population
is greater than it has ever been; is larger, per-capita, than virtually
any other industrialized country; and continues to grow so rapidly that
they can’t build prisons fast enough to house them. In my view, so long
as we insist on solving the problem of crime by means of punishment, there
will be no effective solution.
E. Linn, Ph.D. • Empowering People