On Crime and Much Harder Punishment

By LANCE MORROW

Everyone except the abnormally saintly or submissive possesses the retaliatory instinct. It lurks like a small black gland at the base of the brain, in the mind's nonreasoning regions. When a person's elemental sense of justice is offended, the retributive instinct flares and hops in outrage; it gesticulates like Mussolini; it demands satisfaction. The urge is deep and primitive. Some cannibals on Pacific islands used to eat convicted murderers for dinner--a practice that appeased both their hunger for food and their thirst for justice.

Over many months, the American retributive gland has grown more and more inflamed. A few weeks ago, Robert Jones, 36, stood before the bench in a Chicago courtroom, having just been sentenced to 100 to 300 years in prison for murdering two brothers in a robbery. A voice boomed: "I hope you die in prison!" It was not one of the victims' family or the prosecutor who cried out; it was the judge.

Across the country, the law-abiding are in a punitive mood. A Gallup poll last spring showed 62% of Americans in favor of the death penalty. The public sense of justice, of the simple fairness and fitness of things, is frayed. The nation's crime rate has risen 300% in the past 18 years, though a part of the increase merely reflects greater attention to reporting crimes. These were precisely the years when society was at its greatest pains to humanize the justice system, make rehabilitation programs work and allow indeterminate sentences to relax the law's supposedly heartless rigidity; since 1967 no executions have been performed in the U.S., except that of Gary Gilmore, which was more like a media suicide.

Many Americans harbor an unwholesome and even dangerous contempt for the justice system. Neither criminals nor victims have much faith in its workings: the one class does not fear it much, and the other does not trust it. A mugger leaves a victim crippled, life blighted, and bound to ruinous expenses for treatment. Through plea bargaining and parole indulgences, the attacker emerges from his "punishment" in a matter of months or less, to resume his career. The social contract gets badly tattered in its passage through such a system.

A hard, punitive glare has become respectable for liberals who in years past were all for the Warren Court's protections of the offender. One index of the respectability of the tougher line: Edward Kennedy, who owns the most liberal voting record in the Senate, is the co-author of the revised U.S. Criminal Code that would, among other things, abolish parole boards and indeterminate sentences. There is a certain wistfulness in such measures. Says L. Ray Patterson, dean of the Emory School of Law in Atlanta: "The concern of the public is not so much for vindictive retribution, but for some retribution."

The four classic purposes of imprisonment have been: 1) to deter others from committing crime, 2) to protect society from the criminal, 3) to rehabilitate the criminal, and 4) to give him his "just deserts." Today the first three are not persuasive. The prospect of jail does not seem to be a very forbidding deterrent. Society is obviously not safer but more dangerous these days, even though America's prisons and jails burst with a population of 500,000 inmates. Nearly all rehabilitation programs are well-meaning exercises in futility. That leaves reason No. 4, just deserts--punishment, social retribution, the community's retaliation against the criminal for having violated its rules.

Punishment raises some of the most difficult questions that the moral intelligence has ever confronted, and most of man's answers over the centuries have been neither very moral nor very intelligent. The principle of exact retaliation formulated in Mosaic law ("An eye for an eye, a tooth for a tooth") was actually a kind of early legal reform that placed precise limitations upon the extent of permissible revenge. When medieval kings began establishing strong central authority, and various offenses were perceived as crimes against the king's peace and his formal vanity, the older one-to-one system of compensation was abstracted into a legal machine of great brutality. After centuries of racks, gougings, hangmen and unspeakably inventive tortures, much of mankind adopted the lockup as its principal instrument of punishment, with occasional resort to the noose, guillotine and electric chair.

Now many citizens in the West have begun to detect what might be called the Fallacy of Progress. For a century or more, "progress" in penal thinking has signified increasingly humane treatment for criminals, as if punishment were in itself a vestigial barbarity. But if progress implies a steady mitigation of punishment, then at some point "punishment" must logically lose its meaning, crossing over to become something else. Besides, not many people are pitilessly marched to jail today for stealing loaves of bread. Poverty may breed crime, but few thieves steal because they are starving in a society of food stamps and welfare.

The reformer's morality has always taught that the main objective of punishment is ulterior: to deter or rehabilitate. In this design, punishment should not do the one thing it says it will do--punish. It is not to make the criminal suffer, to make him feel the force of society's anger for his deed. It is surely not communal revenge.

But punishment should be punishment before it is anything else. If it does deter other potential criminals or rehabilitate the convicted, then that should be greeted as a pleasant surprise. The first business, without being bloodthirsty about it, is to keep society's contract with itself and punish a crime as it promised it would. Author C.S. Lewis has pointed out the totalitarian possibilities in treating criminals as sick people who need to be cured: "If crime and disease are to be regarded as the same thing, it follows that any state of mind which our masters choose to call 'disease' can be treated as crime; and compulsorily cured." The KGB understands the logic.

To be told the law, to be told the punishment, and to be punished if one breaks the law, is a sounder and more reliable system of justice than the confusing and ineffective process now operating. A society can be subverted by a system that appears to be not only inconsistent but almost whimsical in its workings. A huge sense of grievance festers. The injustice of the courts seems to mirror the injustice of the economic system. All the rules of society seem to have been changed. You work hard, but inflation destroys your gains; so much for the work ethic. You obey the law, but somehow you get hurt and criminals profit, unpunished.

If the law has meaning, it must carry predictable consequences. And the law for some years has not been certain whether it meant to be a guilt-ridden social worker or a hanging judge. The erratic justice that emerges from the badly overburdened system has been further complicated by the society's spasms of conscience. These arise from the larger unsolved questions of social justice in the U.S., principally poverty and racism. But those questions cannot be solved by a mindless leniency toward criminals in the courts. That policy invites contempt from the poor, who are much more likely than others to be the victims of criminals, and who, in fact, are more likely to favor the death penalty.

The Christian ethic counsels individuals to turn the other cheek, but it does not hold that a society should operate on the principle. Turning the other cheek is an ideal, says Roman Catholic Theologian Daniel Maguire, "like a horizon to turn to. It is not a practical guide for the police in The Bronx."

Although the punitive-minded want higher maximum sentences, much can be gained by a rigorous and consistent imposition of sentences already set. It is possible to argue endlessly about the two central questions surrounding the death penalty: 1) Does it deter? and 2) Is it moral? But the great importance of the issue is symbolic. The argument would tend to abate if the courts worked better at imposing noncapital penalties. On the other hand, restoring capital punishment would produce a moral mess. It would open the U.S. further to charges of racism and hypocrisy; every time a black man was executed in Alabama, the Soviets would feel further justified--by whatever false comparisons--in the conduct of their own Gulags. Not that they need such justification. More important than this propaganda effect would be the domestic divisions and bitterness in the U.S. The death penalty would be ethically shaming and emotionally exhausting. In the end, only a few criminals would be removed (permanently) from circulation. Blood vengeance is not what it is cracked up to be. Much better to concentrate on locking up the incorrigible for long terms.

The realities are more complicated than the rhetoric. Stiffer jail terms, without parole, would mean building a lot more jails. The people who call for tough retribution would be among the first to howl against the taxes that would be needed to finance new prisons and expanded courts. It would be self-defeating to turn into a society of police and wardens in order to restore confidence in the law's consequences. But confusion of judicial purpose, with lapses into wistful incompetence and the sociological sigh, is just as destructive to public morale. Within civilized limits, speed and certainty of punishment represent an approachable ideal. -- Lance Morrow

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