| Social Punishment: The Good, The Bad, The Ineffective
by Seth Harrington
October 11, 2005
I once prosecuted a woman who had attacked and injured another woman. She pleaded with the judge not to send her to jail because if she missed work, she would lose her job. The judge reasoned that if she lost her job, she would probably get into even more trouble, and reluctantly let her off with a stiff fine. She tearfully thanked the judge and promised to make payments on the fine until it was satisfied, asking which office of the courthouse she should go to make payments. Some weeks later, I learned that she had neglected to make a single payment on the fine and had been sent to jail anyway. |
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As long as anyone can remember, people have done bad things. They hurt each other and take things that aren't theirs. In an attempt to control the damage, people have formed civilizations, written laws, and devised punishments for breaking them.
In the days of yore, punishments were carried out publicly. This accomplished at least two things: it brought the wrong-doer to shame and served as an example to other members of the community, and it involved the community in the punishment. Stoning, for instance, was a symbol of removing evil from the community. Therefore, it was necessary for the community to do the job.
Today, punishment is kept almost secret. Devices such as stocks and flogging pillars tend to be associated with the more embarrassing episodes of history, such as the Inquisition, and have become museum pieces. Breakers of the law are loaded onto busses and taken outside city limits often out of state to "correctional facilities," or crowded into rehabilitative centers, having a few small windows, nestled behind a grove of trees.
The reasons behind this vary. One is the belief that those who do wrong do not need to be punished, but simply need to be "corrected," and therefore should be put into programs that help them adjust to society. Another is the belief that those who do wrong are somehow different from the rest of us and therefore need to be locked away from the rest of us. Unfortunately, these expensive facilities rarely have their intended affect. People tend to come out of them more bitter than ever, unable to function lawfully in society, and having been taught how to pull off better crimes by their fellow inmates, not to mention made larger and stronger by the prison weight room.
Ironically, in removing the initial shame that was brought on by public punishments, our system has increased the long-term shame on the convicted a thousand fold. In societies that punished people publicly, people were generally not ostracized from the community. In Puritan society, for example, even if someone was ultimately going to be executed, they were still treated as part of society until that day. Often there would be an "execution sermon" on the day of the execution or the Sunday before, urging other citizens to identify with the offender and acknowledge their own vulnerability to temptation (contrast this with contemporary pro-death penalty arguments, which usually rely on demonizing the defendant).
Due to recent interpretations of the Eighth Amendment, it is hard to see those ugly museum pieces coming back into use anytime soon. It is interesting to note, however, that at the time the Eighth Amendment was written, and for a few decades after, many of them were in use. Believe it or not, I think at least some of them should come back into use. The reason for this is complicated. Let me start by saying that this is not because I think we are too soft on crime.
I think in many ways we are too hard on crime. Many of our punishments change peoples lives permanently. For instance, locking someone up for 10 years doesn't only take away those 10 years. It takes away the person's ability to function in the world, because the world changes. Even if it didn't, the institutionalizing effect of prison kills the ability to act as an independent adult. Also, there are some offenses including some minor ones -- that require a person to register on a permanent list, condemning them to a lifetime of scorn. Worse yet, the names of innocent people are sometimes put on these lists by accident (we hope), destroying their reputations.
Yet at the same time, initial punishments tend to be a slap on the wrist. There isn't the money to lock people up, so sentences for all but the most serious crimes are suspended. Because of the court's limited options in punishment, people walk out of court laughing at the non-punishments they receive. The only people who have any real disincentive to break the law are those who are concerned about living what society considers a "respectable" life the kind with a drivers license, health insurance, and the white picket fence. People who don't care soon figure out that the fact that some piece of paper says their driver's license has been suspended doesn't stop them from getting into a car and turning the key. When they get caught, they will be punished with a fine, which they won't pay. The punishment for failure to pay a fine is usually suspension of a driver's license. Oh, wait...
This cycle continues until some judge gets so fed up with it that he or she sends the person to jail for several days. What makes matters worse is, the State charges arrestees $60 per day for the stay in jail (where I live, anyway). "Court costs," "surcharges," and additional fines pile on top of that. The ordeal of going through court tends to leave people in financial ruin, so that they will never pay off their fines, especially since potential employers will be checking their criminal record. People rarely go back to jail after sentence is passed, but the trip through the system leaves them with no resources, no hope, and no reason not to cause further trouble. The courts are in a bind, forced to choose between letting people ignore the law, or destroying people.
Some of the ugly devices we walk past in museums should stay there. Tools of cruel disfigurement such as the iron maiden or the pairer, when in use, became less about punishment than about sadistic amusement, and ruined people at least as thoroughly as our lists and vicious cycles. On the other hand, nobody's going to die from a day in the stocks or 30 lashes not today when we know how to disinfect. These punishments don't take people away from their jobs for several days, or leave their kids without a way to get to school. They provide retribution that can be associated closely with the crime, instead of the purposeless wanderings through the penal bureaucracy that hardly console victims and foster a sense of victimhood in criminals.
Yes, corporal punishments would provide a better deterrent to criminals who have shed their fear of pieces of paper, but it's not just about being "tough on crime." It's also about freeing people from a downward spiral by allowing them to pay the price for their misdeeds, learn from it, and move on. I also believe punishment by the state should be restored to the public realm. For example, in the middle ages after someone was convicted of a crime, they would sometimes be placed in the stocks and citizens would throw fruit at them. Public punishments would subject offenders to the shame but the temporary shame that a wrongdoer should feel, and it would remove the permanent stigma placed on people by separating them from society, the way we do by putting them in walled compounds.
Given current constitutional doctrine, it seems unlikely that corporal punishment will return anytime soon. It is currently seen as a violation of a fundamental right. We might see it in juvenile court before too long, since juvenile court is basically a reincarnation of the Inquisition where people have no rights. But that is a column for another time.
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