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| Punishment is a specific reaction because of its expressive symbolism. Its fourfold meaning lies - at last according to Joel Feinberg (1970/1994) - in manifesting an authoritative disavowal of the act in question, a symbolic nonacquiescence to what happened, but it also emphatically reaffirms the law, and last not least it relieves others of suspicion and blame by way of concentrating guilt on those who are found to deserve the punishment. The expressive symbolism of punishment aspires to reach three target groups (Günther 2002: 218): (1) the victims of crime (who are reassured that the community does not regard the event as simply bad luck or fate, but as the result of unjustified and intolerable actions), (2) the offenders (who are told that their actions are seen as responsible for that what happened and that their behaviour is seen as strongly reprehensible), and (3) the general public (who is being told that the negative consequences are being defined not as accidental, but as an injustice that cannot be tolerated and that this injustice is neither to be blamed on the victim nor on the public). | | Punishment is a specific reaction because of its expressive symbolism. Its fourfold meaning lies - at last according to Joel Feinberg (1970/1994) - in manifesting an authoritative disavowal of the act in question, a symbolic nonacquiescence to what happened, but it also emphatically reaffirms the law, and last not least it relieves others of suspicion and blame by way of concentrating guilt on those who are found to deserve the punishment. The expressive symbolism of punishment aspires to reach three target groups (Günther 2002: 218): (1) the victims of crime (who are reassured that the community does not regard the event as simply bad luck or fate, but as the result of unjustified and intolerable actions), (2) the offenders (who are told that their actions are seen as responsible for that what happened and that their behaviour is seen as strongly reprehensible), and (3) the general public (who is being told that the negative consequences are being defined not as accidental, but as an injustice that cannot be tolerated and that this injustice is neither to be blamed on the victim nor on the public). |
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| In the course of history, punishment has played a central role ever since the emergence of proto-states, and the function of symbolic reprobation has been associated with certain forms of hard treatment. For a long time, public executions were the most conventional symbols of symbolic reprobation. Later on, the prison assumed this role. There is no natural law that can prevent coming changes. Other forms of hard treatment will become conventional expressions of symbolic reprobation in the future. Even if we suppose punishment to persist for a long time to come, one thing is certain: the prison has not been there forever, and it will not be there forever. It is but one form of punishment - and forms of punishment come and go. | | In the course of history, punishment has played a central role ever since the emergence of proto-states, and the function of symbolic reprobation has been associated with certain forms of hard treatment. For a long time, public executions were the most conventional symbols of symbolic reprobation. Later on, the prison assumed this role. There is no natural law that can prevent coming changes. Other forms of hard treatment will become conventional expressions of symbolic reprobation in the future. Even if we suppose punishment to persist for a long time to come, one thing is certain: the prison has not been there forever, and it will not be there forever. It is but one form of punishment - and forms of punishment come and go. |
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| Von #### hier an müsste der weitere argumentationsgang noch einmal gründlich revidiert und vielleicht gestrafft werden ...das ist der stand von Do, 11.8., 14:00‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚‚s ####
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| It wants to prevent the offender from re-offending, it wants to heal wounds of the victims as good as it can, and it wants to calm public anxiety that may have been fuelled by disturbing crimes. All these are (secondary) purposes of punishing offenders, but they are not what lies at the root of normative theories of punishment. If it was different, i.e. if the basic justification of punishment were only to lie in the prevention of recidivism, then "security measures" with no punitive element were to prefer over "punishment". And in those cases in which there was no recidivism to be feared, and in which, additionally, the victim had forgiven the offender and did not want to see him punished, there would be no need and no justification for punishment anymore. But still, there often are strong feelings in a community that the to restore peace and order, there was a need to respond to the crime in question by an authoritative ''actus contrarius''.
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| Think of the Roman Polanski case: the film director's rape victim, then 13, and now in her 40s, had filed a statement in court asking for dismissal. An editorial of the Los Angeles Times stated the reasons why the court procedure should still go on, even against the victim's explicit will, saying:
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| :"The case against Polanski was not brought to satisfy her (the victim's) desire for justice or her need for closure. It was brought by the state of California on behalf of the people of California. (...) Crimes are committed not just against individuals but againt the community. ... People accused of serious crimes must be apprehended and tried and, if convicted, must face their sentence" (Diamond 2012: 110).
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| As long as those kinds of offenders are still dangerous in the sense of constituting a tangible risk of backsliding into their criminal activities the answer to this question of all questions seems enticingly easy: As long as they are dangerous they cannot be let free. There is an overriding and real reason to keep them locked up for the safety of others. And as long as the risk is real this is completely legitimate. We already stated above that to abolish prison as a punishment does not automatically include the abolition of all kinds of involuntary confinement - from quarantine to preventive detention. Preventive detention is a security measure, not (necessarily) a punishment, and it does not even require the offender to be sane and criminally liable.
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| The problem with serial killers is often that they are deemed (and proven) to be highly likely to proceed with their habit if not held in confinement. To keep them in custody - even if that custody were in a luxurious mansion with a large yard and garden - would be a merely preventive measure and would not necessarily have to comprise torturous elements of extra pain delivery. Still it would imply a symbolic reprehension. It would tell the victim that one cares, it would tell the offender that he is seen as a danger, and it would tell the community that this kind of behaviour is not and will not be tolerated. The function of punishment would be fulfilled without really using punishment.
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| In a spectacular criminal case in the USA, the repeated rape of an 18-month-old girl under the most gruesome circumstances earned former Coast Guard Eric Devin Masters a prison sentence of up to 200 years in April 2016. Even though Judge Trusock declared "You are truly an evil individual and we need to make sure that you are never allowed in society", the massive prison sentence did not satisfy all members of the public, many of whom believed he had deserved the death penalty for the heinous acts he had committed. The case gives evidence that the current conventional expressions of deepest moral indignation are the request for capital punishment and for lifelong confinement in prison. This does not mean, though, that things could not - and should not - change towards less radical punishments. Here, as in the case of serial killers, the need for public disapproval could be expressed in intensive supervision within the community. Extramural alternatives would provide the convict with a reasonable chance of survival (doubtful in prison), would have to provide the victims with a live surveillance technology and the certainty of constant police watch over the delinquent, and it would provide the community with the possibility of finding peace of mind, knowing that the convict is under control and inserted in a productive activity for the community.
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| A similar scheme would be applicable to the roaming rapist. But would it also serve the need for expressive symbolism in the case of the genocidal general? There is no question that there is a strong and legitimate desire for justice on the part of victims of large-scale crimes of the powerful. In some cases, victims' family members struggle for years or decades on end to find culprits and bring them to justice. In the case of Chilean folk-singer Victor Jara, tortured then shot in the head in September 1973 in a locker room at Santiago’s Chile Stadium, where thousands of perceived subversives, activists and communists were rounded up and detained by General Augusto Pinochet’s forces that had just toppled the elected government of Salvador Allende (Jara’s mutilated body was later found dumped outside the stadium with 44 bullet wounds), his widow Joan Turner Jara and their two daughters fought the fight for justice for the murder of their husband and dad for more than 40 years. When the day of the opening of the trial came in a Florida court in 2016, not only was it an "emotional and almost overpowering moment" for the family, but also "a powerful moment for all those who have been seeking justice and truth about what happened during the Pinochet coup,” according to Dixon Osburn, executive director of the California-based Center for Justice and Accountability that had been instrumental in bringing the legal action against the presumptive assassin (Luscombe 2016).
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| At the occasion of the Jerusalem trial over Holocaust organizer Adolf Eichmann, Hannah Arendt was critical of the legal arguments, but not of the result of the trial (Eichmann was executed in 1962). Instead of trying to press things into the categories of criminal law, Arendt argued, the court should have dared to offer a reasoning that would reach out for long-forgotten categories of natural law. Her judgement (Arendt 1977: 279) reads:
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| :"You admitted that the crime committed against the Jewish people during the war was the greatest crime in recorded history, and you admitted your role in it.... We are concerned here only with what you did, and not with the possible noncriminal nature of your inner life and of your motives…. Let us assume, for the sake of argument, that it was nothing more than misfortune that made you a willing instrument in the organization of mass murder; there still remains the fact that you have carried out, and therefore actively supported, a policy of mass murder. For politics is not like the nursery; in politics obedience and support are the same. And just as you supported and carried out a policy of not wanting to share the earth with the Jewish people and the people of a number of other nations… we find that no one, that is, no member of the human race, can be expected to want to share the earth with you. This is the reason, and the only reason, you must hang."
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| The problem with this is, of course, the precedent. There are many crimes that defy all notions of humanity. From genocides to serial killers to the rape of toddlers. For each one of the offenders, when you look closely at the deed and do not want to believe what you see or read, the monstrosity of the deed alone can be seen as "the reason, and the only reason", the offender "must hang".
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| After the Second World War, when German occupation of surrounding countries had ended, the day of reckoning had arried for collaborators. Norway hanged 25 of the most prominent collaborators and sentenced 47 prison guards to imprisonment who were convicted of maltreatment and/or killings of prisoners. A young graduate by the name of Nils Christie, later a world famous criminologist, who had interviewed many of the Norwegian camp guards, was not convinced that punishment was necessary or even only useful. Instead of hanging or imprisoning them (and thereby reinforcing the stereotypes that had been instrumental in their crimes in the first place), he argued, it would have been much more productive to have a long and fair trial that would establish the facts (and the responsibilities) - and thus to have come to a guilty verdict, and then let those shamed individuals go their ways. Could one imagine a more sovereign, a more devastating moral reprehension than this act of letting them walk out of the courtroom into a society that knows, and despises, what they had done?
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| There are advantages in Christie's way over our traditional way of reacting. The problem with eliminatory sentences is the slippery slope. Why should any member of the human race be expected to want to share the earth with any of those whose unspeakable cruelty that freezes the blood in your veins? The idea that some people are simply not worth living is neither new nor a rare thought in human history. Whoever orders or organizes a genocide is just one case in point. But can anybody be expected to share the earth with sadistic mass murderers and serial killers, child rapists and torturers, with terrorists and the hitmen and king pins of drug cartels? And what about corrupt officials who impoverish or endanger whole populations while amassing millions and literally billions of dollars on their tax haven bank accounts? In China, many of the more than 40 criminal offences that carry the death penalty are non-violent and economic in nature.
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| The prison question cannot be disconnected from more profound questions (and decisions) of an ethical and political nature. Whoever opts for the state's right to the death penalty will be likely to grant it also the right to keep criminal offenders locked up like animals in a cage. Whoever takes a more critical view of the state's rights over the individual and a more emphatic one concerning every human being's right to right to life and liberty will tend to reject the death penalty as a transgression of the state's rights over it's subjects and to be open to alternatives to imprisonment when it comes to questions of social control.
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| As far as non-violent crimes are concerned, the state's right to incarcerate could be questioned for reasons of disproportionality. Why respond to non-violence with the violence act of imprisonment? Why not adopt civil law measures and make the offender pay punitive damages that amount to three, four, five or ten times the value of his illicit gains? Why not invent some serious supervised community work for offenders who cannot repay the damage they inflicted?
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| Others might oppose the closing of all prisons because of the drug market. How, we hear them say, can we expect to deter traffickers, pushers, and dealers of dangerous drugs if we cannot even threaten them with long prison sentences? Without the threat of prison, people on the drug market would probably continue doing what they have been doing all along - but with more ease, and with a lower rate of staff turnover. As today, what happens in this market would be determined not by criminal justice interventions but by the basic forces of demand and supply. Things would not by themselves undergo dramatic changes without the prison threat, but there would probably be less violence overall, and a certain détente could occur that might give way to a more sober analysis of the role of criminal justice in the whole field of health risks through the supply and use of recreational drugs.
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| Even more people might oppose the closing of all prisons because of their concern over sex fiends. Sex fiends do exist and some of them defy the therapeutic capabilities of contemporary science and psychology, making them continuously dangerous to others and eligible for long-stay institutions that take care of dangerous individuals by locking them up for preventive reasons. As for the rest of sexual offenders - and probably and happily they will be the large majority - there is no question that a well-supported and well-supervised everyday life in liberty would be a welcome alternative to imprisonment. In their own interest as well as in the interest of a society that has understood that confinement, especially for this special clientele, breeds both violence and monsters, but that circles of support and accountability of the Canadian kind (COSA) are an effective and humane way of dealing with this complicated group of persons in a community setting.
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| == Beyond Prisons and Punishment == | | == Beyond Prisons and Punishment == |