In other news, if you’re in or around Albany on May 5, you should probably attend this event.
A Superior Court judge who sentenced a wealthy du Pont heir to probation for raping his 3-year-old daughter noted in her order that he “will not fare well” in prison and needed treatment instead of time behind bars, court records show.
Judge Jan Jurden’s sentencing order for Robert H. Richards IV suggested that she considered unique circumstances when deciding his punishment for fourth-degree rape. Her observation that prison life would adversely affect Richards was a rare and puzzling rationale, several criminal justice authorities in Delaware said. Some also said her view that treatment was a better idea than prison is a justification typically used when sentencing drug addicts, not child rapists.
A lot of people are furious about the sentence handed down in this case, not to mention the language used to justify it. And I understand their shock and their outrage. But I don’t share it.
As someone who advocates for a more restorative approach to justice, it seems to me that a prison sentence in this case isn’t accomplishing anything other than punishment. And, given the details of the offense, the judge is almost certainly right that the offender would not fare well in prison. He’d likely be savagely beaten, raped, murdered … or all of the above. He might be put in protective custody in prison, but that would mean solitary confinement all day every day for the duration of his sentence which is, I think, a form of torture.
Of course, this is precisely what some people want: Offenders ought to be made to suffer in prison. The virtue of that suffering is the suffering itself; we are outraged by the offense and we want to pay back the offender in kind. That, for a great many people, is the whole point of prison. It’s why people complain about anything from prisoners’ access to educational opportunities, to television privileges, and to three square meals a day. If you’re watching tv or taking a correspondence course, you’re obviously not suffering enough for the offense that landed you in prison.
For my part, I think we’d do better to think about steps we can take to right the wrong that occurred and to ensure that it isn’t repeated. Of course, it’s clear that society needs to be protected from dangerous offenders and so, in some cases, probation would be completely inappropriate; this doesn’t appear to be one of those cases. But in case my reading of the situation is incorrect and this offender presents a potentially ongoing danger, the judge has mandated treatment (both inpatient and then outpatient) and has ordered the offender to stay away from children. Failure to comply will surely result in a prison sentence.
What remains, then, is an attempt to right the wrong or respond to the harm that has been done. In cases where an offender is sentenced to prison, the public feels that justice has been done and we can all move forward. But there’s absolutely no line drawn for us between a prison sentence for the offender and righting the wrong experienced by the victim … because there really isn’t any immediate connection between those two things and because we don’t spend a whole lot of time considering the needs of victims.
Restorative justice isn’t about leniency for offenders; it’s about discovering and attempting to meet the needs of victims while encouraging offender accountability. It’s just not clear that lengthy prison sentences under the worst possible conditions accomplishes either of those things.
I completely understand the gut feeling that something terrible ought to happen to a person who harms a child; as a father myself, I’m disgusted and outraged by this man and what he did to his children. But that doesn’t mean we ought to turn that feeling into policy, especially if doing so accomplishes nothing more than making the public feel good about getting vengeance. Taking out our collective wrath on offenders doesn’t necessarily do anything to help their victims, nor does it automatically lead to offender accountability. Working to accomplish those things, rather than to sate our desire for vengeance, would likely result in a radical change in the way we think about justice and punishment, and the way we respond to crime.
LTMC: With stories like this, I find that people often have difficulty separating two issues: inequality of outcomes versus the qualitative justice of each outcome.
It is unjust that poor sex offenders typically get thrown to the wolves in prison, while a rich sex offender is given treatment and probation because he “won’t fare well” in prison. Wealth shouldn’t dictate the kind of justice a person receives. That’s an inequality of outcomes that everyone can agree is unfair.
The question remains, however, of how outcomes should be equalized. The knee-jerk reaction to this situation is that this guy escaped a well-deserved stint in the punitive hellscapes America calls prisons. But sentencing a person to eternity in a concrete hate factory is not necessarily the right result, for all the reasons Prof. Kohen stated above.
There are ways that we can deal with serious sex offenders that don’t involve subjecting them to the absolute worst humanity has to offer—particularly since sex offenders have one of the lowest recidivism rates of all violent crimes. Contrary to popular belief, many of these people are redeemable.
But what about the victims? How will they get justice unless the offender suffers commensurate to their crime? I’ll let the infamous bleeding heart hippie Winston Churchill plead my case:
The mood and temper of the public in regard to the treatment of crime and criminals is one of the most unfailing tests of the civilisation of any country. A calm dispassionate recognition of the rights of the accused, and even of the convicted criminal, against the State— a constant heart-searching by all charged with the duty of punishment— a desire and eagerness to rehabilitate in the world of industry those who have paid their due in the hard coinage of punishment: tireless efforts towards discovery of curative and regenerative processes: unfailing faith that there is a treasure, if you can only find it, in the heart of every man. These are the symbols, which in the treatment of crime and criminal, mark and measure the stored-up strength of a nation, and are sign and proof of the living virtue in it.
Your fresh outrage of the day.
Radical life extension would give humans the power to create an artificial hell for criminals. Should we?
This piece has come across my desktop 3 separate times in the past 24 hours. The answer to its central question is very obviously “No,” but I think the premise requires some discussion.
This notion that criminals don’t suffer enough or get off too easily, especially when they die, really speaks, I think, to the basest part of us, the part that longs to see other people — those who we prefer to think of as monsters — suffer as much as possible.
[A]t the heart of the idea of both the death penalty and life imprisonment without parole is the notion that the offender is completely and utterly devoid of humanity. With this in mind, prison isn’t about correction and rehabilitation; it’s about punishment and revenge. If the death penalty is too expensive, if it risks the execution of an occasional innocent, and if it doesn’t cause all that much suffering, then it can be jettisoned in favor of a punishment that’s cheaper, that we can correct when we err, and that — if done properly — might be even worse for offenders.
Rather than seeking to rehabilitate offenders and keep us safe from those who might try to harm us, we want our prisons to be the most god-forsaken places; we want our punishments to vent all of our rage at crime and criminals; and now, it seems, some of us want to consider creating “a living hell” for criminals we deem not to be able to suffer sufficiently through more conventional means of punishment. Of course, this desire to devise, implement, or marvel at the most awful possible punishments for offenders isn’t anything new. As Nietzsche argues:
Dante, I think, committed a crude blunder when, with a terror-inspiring ingenuity, he placed above the gateway of his hell the inscription “I too was created by eternal love”—at any rate, there would be more justification for placing above the gateway to the Christian Paradise and its “eternal bliss” the inscription “I too was created by eternal hate—provided a truth may be placed above the gateway to a lie! For what is it that constitutes the bliss of this Paradise?
We might even guess, but it is better to have it expressly described for us by an authority not to be underestimated in such matters, Thomas Aquinas, the great teacher and saint. “Beati in regno coelesti,” he says, meek as a lamb, “videbunt poenas damnatorum, ut beatitude illis magis complaceat” (On the Genealogy of Morals: A Polemic in Basic Writings, 485).
In his footnote, Walter Kaufmann translates the Latin: “The blessed in the kingdom of heaven will see the punishments of the damned, in order that their bliss be more delightful for them.” He notes, also, that this is not quite what one finds in Aquinas’ Summa Theologiae; to be exact, Aquinas writes, “Ut beatitude sanctorum eis magis complaceat, et de ea uberiores gratias Deo agant, datur eis ut poenam impiorum perfecte intueantur.” In English: “In order that the bliss of the saints may be more delightful for them and that they may render more copious thanks to God for it, it is given to them to see perfectly the punishment of the damned.” While the original differs from Nietzsche’s rendering of it, the spirit is clearly unchanged. The lengthy quotation that Nietzsche employs following Aquinas, while also in Latin, is even more faithful to its author, Tertullian. Here is a short sample, in English:
Yes, and there are other sights: that last day of judgment, with its everlasting issues; that day unlooked for by the nations, the theme of their derision, when the world hoary with age, and all its many products, shall be consumed in one great flame! How vast a spectacle then bursts upon the eye! What there excites my admiration? what my derision? Which sights gives me joy? which rouses me to exultation?—as I see so many illustrious monarchs, whose reception into the heavens was publicly announced, groaning now in the lowest darkness with great Jove himself, and those, too, who bore witness of their exultation; governors of provinces, too, who persecuted the Christian name, in fires more fierce than those with which in the days of their pride they raged against the followers of Christ.
Devising ghastly punishments for others is old hat for human beings. But it’s something we can and we ought to outgrow. Focusing on restorative rather than retributive justice is better for us, both psychologically and also societally. We’re simply not doing ourselves any favors by continuing to insist that the only — or the best — vision of justice is one that centers on making offenders suffer and then devising more and more types of suffering to heap on them.
Instead, we would do well to start thinking more seriously about restorative approaches to justice, which, as David Cayley defines them, “seek noncustodial settlements; they allow both the offender and the victim much more initiative; they are oriented more to peacemaking than punishment; and they try to mobilize the capacities of families, friends, and local communities in correcting offenders and holding them accountable” (10). This would, of course, require a radical reimagining of our criminal justice system and a full-scale rejection of the knee-jerk policies of the “Tough on Crime” crowd. We’re a long way from really integrating restorative practices into our thinking about criminal justice, but at least we can begin by vocally rejecting the arguments of those who want to consider whether we can find a way to ethically embrace a biotech hellscape for criminals. Clearly, we cannot.
LTMC: As long as we’re discussing Christian morality, let’s not forget that Christ forgave the penitent thief on his right hand who was crucified with him:
39 Now one of the criminals hanging there reviled Jesus, saying, “Are you not the Messiah? Save yourself and us.” 40 The other, however, rebuking him, said in reply, “Have you no fear of God, for you are subject to the same condemnation?41 And indeed, we have been condemned justly, for the sentence we received corresponds to our crimes, but this man has done nothing criminal.” 42 Then he said, “Jesus, remember me when you come into your kingdom.” 43 He replied to him, "Amen I say to you today you will be with me in Paradise." 23:39-43
And of course, my favorite Biblical passage, Matthew 25:34-40:
34 Then shall the King say unto them on his right hand, Come, ye blessed of my Father, inherit the kingdom prepared for you from the foundation of the world: 35 For I was an hungered, and ye gave me meat: I was thirsty, and ye gave me drink: I was a stranger, and ye took me in: 36 Naked, and ye clothed me: I was sick, and ye visited me: I was in prison, and ye came unto me.
37 Then shall the righteous answer him, saying, Lord, when saw we thee an hungred, and fed thee? or thirsty, and gave thee drink? 38 When saw we thee a stranger, and took thee in? or naked, and clothed thee? 39 Or when saw we thee sick, or in prison, and came unto thee?
40 And the King shall answer and say unto them, Verily I say unto you, Inasmuch as ye have done it unto one of the least of these my brethren, ye have done it unto me.
Nobody—nobody—is more so the “least of these” than the incarcerated. Christopher Glazek put it best in his prescient article, Raise the Crime Rate:
Prisoners are not the victims of poor planning (as other progressive reformers have argued)—they are the victims of an ideological system that dehumanizes an entire class of human being and permits nearly infinite violence against it. As much as a physical space, prisons denote an ethical space, or, more precisely, a space where ordinary ethics are suspended.
This ethically exceptional space has created a nightmarish carnival show in corrections facilities across America that has been conveniently shut off from the rest of the world. The absolute horror that gets inflicted upon human beings in prison is the single greatest human rights catastrophe in the First World. And it has been going on for decades. In United States v. Bailey (1980), Justice Blackmun wrote in a dissenting opinion:
The atrocities and inhuman conditions of prison life in America are almost unbelievable; surely they are nothing less than shocking…And the Government concedes: “In light of prison conditions that even now prevail in the United States, it would be the rare inmate who could not convince himself that continued incarceration would be harmful to his health or safety.” […] A youthful inmate can expect to be subjected to homosexual gang rape his first night in jail, or, it has been said, even in the van on the way to jail. Weaker inmates become the property of stronger prisoners or gangs, who sell the sexual services of the victim. Prison officials either are disinterested in stopping abuse of prisoners by other prisoners or are incapable of doing so, given the limited resources society allocates to the prison system. Prison officials often are merely indifferent to serious health and safety needs of prisoners as well.
In Brown v. Plata (2011), the Court described conditions in California’s overcrowded prisons:
Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. …Wait times for mental health care range as high as 12 months.
Prisoners suffering from physical illness also receive severely deficient care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with “constant and extreme” chest pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a “failure of MDs to work up for cancer in a young man with 17 months of testicular pain.”
In 2007, Kim Shayo Buchanan discussed conditions in women’s prisons:
In the United States, sexual abuse by guards in women’s prisons is so notorious and widespread that it has been described as ‘an institutionalized component of punishment behind prison walls. …[And] although rape by guards is commonplace in U.S. women’s prisons, most custodial sexual abuse takes forms other than outright rape. Prison officials report that “[m]ost allegations involved verbal harassment, improper visual surveillance, improper touching, and/or consensual sex.” More specifically, women prisoners are subjected to sexual comments, groping, and threats of rape; male guards watching them on the toilet or in the shower; physical searches by male guards; demands for sex in exchange for goods or privileges or under threat of sanction; and guards taking advantage of their position to have “consensual” sex with prisoners without overt material exchange.
The saddest part is that everybody knows this is going on. As Andrew Cohen said recently, “It’s fairly easy to get judges to find unconstitutional conditions inside our prisons. The hard part is getting government to do anything about it.”
Ironically, many “law & order” Conservatives often complain about the collapse of Christian values in America. I’m admittedly not a Christian, but according to Christians I know, the single most Christian value is forgiveness. It is embodied in the concept of Grace, which Theologian Robert Farrar Capon described as "indiscriminate compassion." Those who are concerned about the collapse of Christian values in America could reinvigorate Christian values by working to reform our criminal justice system and inject that same “indiscriminate compassion” into our prisons, rather than a system constructed as a living monument to one of the Seven Deadly sins: "a love of justice perverted to revenge and spite.”
CPAC: The Conservative Case for Criminal Justice Reform
"You want to talk about real conservative governance? Shut prisons down." - Texas Gov. Rick Perry, CPAC 2014
Imagine you’re a young white guy facing capital murder charges where you can receive the death penalty… the victim in the case is a black man… when you go to trial and step into the courtroom… the judge is a black man… the two State prosecutors seeking the death penalty on you… are also black men… you couldn’t afford an attorney, so the Judge appointed you two defense lawyers who are also black men… you look in the jury box… there’s 8 more black people and 4 hispanics… the only white person in the courtroom is you… How would you feel facing the death penalty? Do you believe you’ll receive justice?
As outside of the box as that scene is, those were the exact circumstances of my trial. I was the only black person in the courtroom."
— Ray Jasper, Texas death row inmate who will be executed this month.
— Andrea Raethka, on Governor Cuomo’s recent push to reintroduce prison college education programs in New York State. The proposal is meeting predictable resistance from people who are mad that prison inmates could get “something for nothing,” or are being “rewarded” for their crimes with a free college education. In other words, they would rather pay higher taxes and live with higher crime rates than tolerate even one prisoner getting a “free” college education, providing an excellent example of what cutting off your nose to spite your face looks like.
- “We are announcing today that we have reverted back to our prior legal terms, which contain no mention of arbitration.”—
A statement from General Mills...
- “The necessity of political philosophy arises because most policies are good for some people and bad for others.”—
That’s Harvard economist N. Gregory...