Locking up offenders does little to prevent crime or make us safer. The history behind our impulse to punish.
… In the ’70s, Ted Bundy raped and murdered at least thirty women, sometimes defiling their corpses. A decade later, Jeffrey Dahmer raped, murdered, and, in some instances, cannibalized seventeen young men and boys, many of whom he lured back to his Milwaukee, Wisconsin, apartment from gay bars. Around the same time, Paul Bernardo committed countless rapes and sexual assaults in southern Ontario, and then, with his wife, Karla Homolka, kidnapped, raped, tortured, and murdered three women, including Homolka’s younger sister. In 2009 and 2010, Russell Williams, the commander of the Canadian Forces Base in Trenton, Ontario, sexually assaulted and murdered two women. And in the summer of 2011, Anders Breivik bombed a government building in Oslo, killing eight people, and later gunned down sixty-nine others at a Labour Party youth camp.
These extreme cases constitute a vanishing fraction of even the worst violent crimes, but they form a model of absolute, uncomplicated evil against which lesser infractions are measured: this is crime in its pure state. We naturally view these stories through the lens of the victims, identifying with their suffering and the grief of their families and friends; we look upon the perpetrators as incomprehensible aliens. The only satisfying outcome is swift, decisive punishment. In such instances, punishment is an attempt to erase the blight of evil, to heal a grievous social wound, and for that to happen the punishment must fit the crime.
At its most basic, punishment is hard to distinguish from revenge, and the impulse for retaliation is no doubt hard-wired. Studies have shown that card players will give up benefits to themselves, such as a winning hand, to expose and penalize cheaters: punishment, in the short run, trumps even self-interest. Psychologists who use game theory to study the evolution of co-operation have found that the threat of swift retaliation against those who engage in uncooperative behaviour is crucial to establishing stable, productive communities; we have a collective stake in the assurance that those who profit at our expense will pay a steep price. The idea of community, it seems—one of Homo sapiens’ chief advantages in the competition for scarce resources—emerged under the dark shadow of punishment.
Nonetheless, retaliation has no intrinsic moral legitimacy, and since it involves hurting another person, the victim might well perceive him- or herself as harmed and retaliate in kind, creating an open-ended cycle of tit-for-tat blood feuds, waged throughout history and still common in such places as rural Albania. For punishment to be something greater than mere retaliation, it must have a deeper grounding, and that is just what early Babylonian law and the Hebrew Bible endeavoured to teach.
A well-known passage in Leviticus reads, “And he that killeth any man shall surely be put to death. And he that killeth a beast shall make it good; beast for beast. And if a man cause a blemish in his neighbour; as he hath done, so shall it be done to him. Breach for breach, eye for eye, tooth for tooth.” It ends with the refrain “Ye shall have one manner of law, as well for the stranger, as for one of your own country; for I am the Lord your God.” This passage (and others like it) is remarkable in a number of ways. First, it implies the existence of a specific punishment that mirrors the crime; and, more important, it insists that everyone, everywhere, be subject to the same standard. The Hebrew Bible rejects personal or tribal justice, instead asserting retributive justice and the supremacy of the rule of law in its strictest form.
The trouble with retributive justice is that a literal reading of the “eye for an eye” passage leads to morbidly comical conclusions and boundless forms of cruelty. In many situations, it is not even clear what an appropriate equivalent means: one rabbi noted that if a blind man puts out someone’s eyes, it is impossible to blind him in return. In the case of extreme crimes, such as Bernardo’s or Breivik’s, or horrors as immense as the Holocaust, no punishment could compensate for the victims’ suffering. Jesus’ direction “Ye have heard that it hath been said, an eye for an eye, and a tooth for a tooth: But I say unto you, that ye resist not evil: but whosoever shall smite thee on thy right cheek, turn to him the other also” is not so much a criticism of the rabbinical courts of the Second Temple period, which were notably humane (crucifixion was a Roman practice, and capital punishment was used sparingly under the Pharisees). Rather, it was a way of pointing out that retributive justice can devolve into vengefulness as destructive as the crime itself.
The story of punishment from the Middle Ages through the eighteenth century is one of shocking brutality and bewildering arbitrariness. Regicides, parricides, ordinary murderers, homosexuals, heretics, and witches were broken on the wheel, disembowelled, ripped open with red-hot pincers, burned, and drawn and quartered; even teenage pickpockets were put to death. By the late eighteenth century, however, what French historian and philosopher Michel Foucault describes in his seminal 1975 book, Discipline and Punish: The Birth of the Prison, as “the gloomy festival of punishment” was ceding to a model oriented toward determining the impact of crime on society and the need for deterrence. This shift was due in large measure to a little book by an otherwise obscure Italian jurist and philosopher named Cesare Beccaria.
“Observe that by justice I understand nothing more than that bond which is necessary to keep the interest of individuals united, without which men would return to their original state of barbarity,” Beccaria wrote in 1764, in On Crimes and Punishments. “All punishments which exceed the necessity of preserving this bond are in their nature unjust.” He shifts the question from the criminal act to its effect on the community where it was carried out. Therefore, the purpose and justification of punishment is not to satisfy the victim or eradicate evil, but to repair the damage caused to society and prevent future crimes—and to do so without causing further harm. “There should be a proportion of punishment to crimes based on the degree to which the crimes affect society,” he writes. “Crimes are only to be measured by the injury done to society.”
Alas, it is difficult to quantify this, and even if one could, the punishment might well fall shy of the weight assigned to the crime by the victim. Think of the virulent outcry that accompanies the release from prison of convicted rapists and pedophiles. Beccaria’s notion of punishment ends up facing the same conundrum that both Jesus and the rabbis of the Talmud identified: how does one assign a value to a crime? A rape, for instance, may well affect the victim for the rest of her life, and such traumas end up being transmitted across generations. Furthermore, it is near-impossible to assess the real deterrent value of a punishment; criminals are not in the habit of maximizing the marginal utility of their actions. In any case, the sources of crime are complicated and myriad: childhood trauma, chronic poverty, addiction, and psychiatric conditions among them. The two major theories of punishment—retributive, and the one proposed by Beccaria and refined over the past 250 years—suffer from similar faults: vagueness and arbitrariness. And that is before we attempt to translate a theory of punishment into a criminal justice system for a twenty-first-century Western democracy.
The concept of punishment that operates in the criminal justice systems in Canada and the US is a hodgepodge of the retributive and the deterrent. The death penalty and multiple life sentences without the possibility of parole are clearly retributive; custodial sentences for the possession of drugs are seemingly meant to be deterrent. This is why the punishments meted out can seem random: people who are no risk to anyone end up in prison, where the deterrent effect is negligible, and where the punishment appears out of proportion with the crime. Why should anyone do jail time for growing marijuana? Odder still, in Canada judges issue longer sentences to people who grow pot in rented apartments than to those who do so in their own homes—an apparent incentive for home ownership.
The mandatory sentences popular in the US and their increasing prevalence in Canada further widens the gulf between crime and punishment. Meanwhile, more families are broken up and more neighbourhoods ravaged, and more inmates are released after substantial sentences without the necessary skills or resources to reintegrate into society. This undermines whatever deterrent value the punishment was intended to have in the first place. The accepted wisdom is that criminals deserve punishment, but what does that mean, and does it solve anything? Indeed, at this point, it is not even obvious what punishment is supposed to be.