You probably don’t know that a few years ago I appeared twice on BBC panels discussing crime and punishment. However, if you read on, you’ll know why I haven’t been invited since.
My fellow panellists recognised only two functions of imprisonment. By far the most vital, as far as they were concerned, was the rehabilitation of the criminal. Then, in a strictly secondary or rather tertiary position, was deterrence, punishment pour encourager les autres.
(That phrase literally means ‘to encourage others’, but in Voltaire’s Candide it was used in reference to the rather discouraging execution of Admiral John Byng.)
Hence the discussion generally revolved around the most effective ways of awakening prisoners’ conscience, curing them of their moral or psychological defects and helping them along the road leading from devil to angel. Deterrence also featured, but only as an afterthought.
My interlocutors doubted imprisonment deterred at all. It would only deter if sentences were so draconian, and conditions in prisons so awful, that no civilised country could tolerate such inhumanity. We are all of us humane people, aren’t we?
I tried, on both occasions, to argue that neither rehabilitation nor deterrence can be the primary goal of gaol. However, the moment I uttered the dread word ‘justice’, my participation in the discussion drew to an end, more or less.
So, as a matter of fact, did the discussion itself, in the sense of dispassionate, reasoned discourse. The other participants became shrill and excited, drowning my objections in the gallons of spittle they sputtered. It was made clear to me in no uncertain terms that my notion of justice was too antediluvian to be entertained in polite, which is to say liberal, society.
I tried to defend myself, which attempt failed even more miserably when I dared mention the death penalty. My partners in crime and punishment added a few decibels to their animadversions, outshouting me with ease and leaving me in no doubt that it was only troglodytes like me who merited such punishment. Moreover, they’d be happy to administer it personally.
Since, as I write this, no opposition is peeking over my shoulder, I’ll try to make my belated case. It will be open to discussion, but at least only after I’ve made it.
The idea of retributive justice was exhaustively covered in Psalm 28:4-5: “Give them according to their deeds, and according to the wickedness of their endeavours: give them after the work of their hands; render to them their desert.”
‘Desert’ being a cognate of ‘deserve’, the scriptural idea of punishment is justice: giving criminals what their acts deserve. I’d suggest that such retributive justice upholds human dignity, while the ‘humane’ justice favoured by my opponents demeans it.
The scriptural, traditional idea of justice differs from the modern equivalent because so does the scriptural, traditional idea of man. Man, according to the formative documents of our civilisation, is made in the image of God.
That doesn’t imply physical likeness. It does, however, imply an approximation to God’s freedom and hence man’s uniqueness among all God’s creatures. Free will – and not, for example, consciousness – is in fact the most salient feature distinguishing man from animals.
A dog possesses a consciousness, but he isn’t free to make choices, such as whether or not to chase a cat around the block. His behaviour is wholly contingent on his biological makeup. Fido will go after Tabby not because he chooses to but because he is programmed to do so.
Man, on the other hand, is free to choose how to act, and after the Fall he can choose not only right but also wrong. This freedom presupposes responsibility for his actions, enjoying the consequences of good choices and suffering those of bad ones. If a man chooses to rob, steal or kill, he is acting as a free agent and deserves punishment commensurate with robbery, theft or murder.
Such is the inference from Scripture, and one can argue that all of Western criminal jurisprudence is nothing but commentary on that inference. Or rather it used to be.
Traditional justice was based on a certain understanding of man’s nature and, as that understanding changed, so did the concept of justice. Ever since the chap whom Nabokov invariably called “that Viennese quack” began to put his mendacious nonsense on paper, man has been losing his freedom in the eyes of progressive people.
More and more he began to resemble an automaton wired to act in a certain way irrespective of his reason. More and more the difference between Fido and his owner got to be seen as that of degree, not kind.
If a man commits a crime, that’s not because he chose to do so but because some mysterious subconscious or unconscious mechanisms in his psyche clicked together. Since as a result he robbed an old woman rather than helping her across the street, those mechanisms must have gone awry.
Now, when a car mechanism breaks down, you go to a car mechanic. And when a breakdown occurs in a psychological mechanism, a modern man will go to a therapist, ideally one qualified in the dark arts of psychoanalysis.
The therapist will start by asking the kind of embarrassing personal questions any sensible person should refuse to answer, perhaps even rudely. The shrink will then set up a schedule for more of the same and perhaps suggest some supplementary cures, such as physical exercise, more sleep, less worrying – whatever.
That way the malfunctioning mechanisms, existing mostly in the fantasy of the therapist and his brainwashed patient, will be repaired and recalibrated. The patient will be cured or, to use my opponents’ language, rehabilitated.
When the patient happens to be a prisoner kept under lock and key, he has no choice whether to undergo rehabilitation or not – just as he is presumed not to have made the free choice to commit his crime. He does, however, have a vested interest in faking therapeutic success. If he can convince prison authorities that he is now a new man full of the milk of human kindness, he can get an early release, and never mind what he did to those hitchhikers.
After all, if rehabilitation is the main aim of imprisonment, it would be both inhuman and irrational to keep an inmate inside after the aim has been achieved. Justice is thus put on a quasi-professional basis. It’s up to professional therapists (or officials acting in that capacity) to decide whether or not the prisoner is sufficiently rehabilitated to be released into society.
Society, on the other hand, has no say in the matter. Made up as it is of rank amateurs in rehabilitating therapy, it’s not deemed competent enough to decide whether or not justice has been done.
However, in Britain at any rate, the decision to convict a defendant in the first place is left to amateurs, ‘twelve good men and true’. They are a microcosm of society and their job is to assess the arguments presented by professional jurists and then pass their verdict on society’s behalf.
In other words, it’s society that decides whether the defendant deserves to be punished. The ancient understanding is that in such matters it’s society’s interests that must be protected first and foremost.
It was a commonplace that crimes unsettle society, making it uneasy and agitated. Social tranquillity can only be restored by the criminal getting the punishment he deserves – the punishment for the act he freely chose to commit as a man created in the image of God but subject to original sin.
That’s why back in 1924 Lord Chief Justice Hewart uttered these wise and oft-repeated words: “Justice must not only be done, but must also be seen to be done”. Rest assured that he didn’t mean society being satisfied that imprisonment has had its desired therapeutic effect.
By punishing a criminal for his act, society pays him the ultimate compliment of accepting him as a man made in the image of God and hence endowed with free will. This is the proud affirmation of humanity, that of the criminal and man in general.
By contrast, treating a criminal not as a man serving the punishment he deserves, but as a patient who was compelled to act by some treatable psychological quirk, deprives the criminal – and also all of us – of humanity, mankind’s most proud possession.
Pervert the understanding of man’s nature, and perversion of justice is just round the corner. There it is, staring us in the face.
I remember seeing you discus this on telly back in 2016. I fear you were upstaged by another story on the same show; namely that of a recently deceased 14-year-old girl who, whilst terminally ill, had flown to the States to be cryogenically frozen.
What a long memory you have, Grandma. Mine is considerably shorter. All I remember is being outshouted yet again, which is always easy when someone refuses to shout.