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Redemption, Forgiveness, and the Rule of Law

A cocktail party is an odd place, perhaps, to discuss the rule of law, but I have no small talk and neither had my interlocutor. Our views on this subject were, fortunately for the flow of conversation, somewhat at variance.

My interlocutor asked me whether I believed in redemption and forgiveness, that is to say the possibility that a prisoner incarcerated for a serious crime could redeem himself and be forgiven. I said that I did not, at least not in any sense that had any legal bearing. From the religious point of view, of course, it was different.

My opponent (for of course such a discussion soon turns to mutual opposition) asked me whether I preferred the rigidity of Islamic law, in which there was no redemption or forgiveness, only punishment. Was I, in effect, a man for final judgments, even for the young? Had I forgotten that it was God who would judge us all?

He then brought up the case, as often happens in England in these circumstances, of Myra Hindley. She was a young woman who, in the early 1960s, came under the influence of a psychopath called Ian Brady who spouted existentialist philosophy and lived out Camus’ L’Étranger by kidnapping and torturing at least five children to death, having persuaded Hindley to be his accomplice, and then burying them on the Lancashire Moors. Ever afterwards, the killings were known as the Moors Murders.

Eventually Hindley died in prison, despite a long campaign by eminent persons to have her released. She had repented her crime, they said; she probably posed no future threat to society. (Indeed, she was more likely to be killed on her release than to kill, for local feeling against her had never weakened, not even 40 years later.) What was the point of keeping her in gaol? It was pure vengefulness. She had, after all, been young and impressionable at the time of her crimes, and were it not for the mischance of falling in with Brady, she never would have committed them.

I did not agree, though I realized that I was at a disadvantage in our discussion, emotionally if not intellectually. I recognized the human feeling from and for which my opponent spoke. We are all of us guilty of many things, we all stand in need mercy, forgiveness and understanding many times in our lives, punishment should not be unduly prolonged or harsh, wrongdoers must be allowed, able and encouraged to repent, there but for the grace of God go we, and so forth: all decent and salutary sentiments.

By contrast, a punitive attitude, or what appears to be such, is never very attractive. No literary figure ever gained many kudos for advocating the punishment of a criminal, though plenty have been admired for their human understanding of murderers and the like, whether rightly or wrongly convicted. Intellectuals are inclined to believe that those who call for the punishment of criminals are of the party of Robespierre, Roland Freisler or Comrade Vyshinsky—mean-spirited and prey to the most sadistic impulses. They draw that conclusion however numerous the victims may be by comparison with the number of perpetrators (for perpetrators usually create many more than one victim).

But let us look a little closer into the case of Myra Hindley. What does it mean for someone to say, “I now realize that kidnapping and torturing to death small children is wrong, and I deeply regret having done it”? She was comparatively young at the time of the commission of her acts, no doubt, but she knew perfectly well that they were wrong: their very wrongness, in fact, is what made them attractive to her. And how long after the commission of the acts does the realization of their wrongfulness and the regret at having done them have to be before they are deemed relevant to the question of the length or severity of punishment? Suppose they come instantaneously. Do we therefore say, “Well, that’s all right then, so long as you realize that what you did is wrong and regret having done it, we shall not punish you at all”—because to do so would be pure vengefulness?

And how do we know that the realization and regret are real, especially when there is a reward for expressing them, namely the possibility of release from prison or the evasion altogether of punishment? I was an experienced prison doctor, but I should not like to say that no prisoner ever led me by the nose. A prisoner once explained to a friend of mine (another prison doctor) what you had to do get out from under a long sentence. For the first couple of years or so, he said, you had to behave very badly, making all sorts of trouble for the authorities; thereafter, you made less and less trouble until, after about four or five years, you became a model prisoner. You complied with everything and underwent all the psychological courses recommended for you, as if they were serious. Everyone would remark on what progress you had made, and ascribe it to his own efforts. It would cut years off the time you served.

What of the notion that a prisoner should be released because he no longer poses a threat to society, or only a slight one? This is the logic, more or less, on which parole is granted (or refused). But to make the severity or leniency of punishment contingent upon speculations about someone’s future conduct, in particular with regard to committing future crimes, is completely inimical to the rule of law. Such speculations can never attain certainty, or anything like it; but under the rule of law a person is to be punished only for what he has done beyond reasonable doubt. In effect, to refuse a man parole that is granted to others is to punish him on the grounds of unprovable speculations—and these are in each and every case open to reasonable doubt.

In other words, only parole granted to everyone at a fixed time in his sentence, as a standard condition of his punishment, would be fully compatible with the rule of law.

To require expressions of remorse from prisoners is to demand (at least in many cases) to be lied to. Remorse is a private emotion, and is sullied and rendered doubtful by the possibility of personal advantage if it is expressed.

Moreover, there are some crimes so heinous that remorse for them is quite beside the point, at least where earthly judgment is concerned. (God may take a different view, but that is not up to us to decide.) And while people may pride themselves on their compassion when they claim that no person is beyond the reach of remorse, redemption, and rehabilitation, in fact what they show is a lack of imagination. There are some crimes that are properly beyond secular forgiveness; there were many in the 20th century; and we should not confuse the realm of the secular and divine.

When my interlocutor and I ended our discussion, however, and circulated among the other guests, I still felt that I had had the rational, but he had had the emotional, advantage.

Reader Discussion

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on November 09, 2017 at 09:16:36 am

Perhaps what was missing from the exchanges was the "why" of *the* LAW that rules.

How and why does *the* LAW itself come to exist?

Instead we are all more "comfortable" with considering how *the* LAW rules.

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R Richard Schweitzer
on November 09, 2017 at 12:08:31 pm

As to the WHY, it may be that as Dalrymple suggests some crimes are so heinous that the miscreant has placed herself beyond "secular" redemption and forgiveness. The Deity's thinking in this matter is, of course, beyond my pay grade.

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gabe
on November 09, 2017 at 18:07:02 pm

I appreciate Dr. Dalrymple's story. "[Someone] asked me whether I believed . . . the possibility that a prisoner incarcerated for a serious crime could redeem himself and be forgiven. I said that I did not [in the legal] sense. My opponent . . . asked me whether I preferred the rigidity of Islamic law? Had I forgotten that it was God who would judge us all?" God is not involved in civic justice.

I'm informed by the civic agreement that is stated in the preamble to the constitution for the USA and appreciation for the-objective-truth. We're informed by Scalia's opinion that legal "responsibility is the here, not the hereafter." A civic people or every civic citizen collaborates for statutory justice. "Civic" refers to justice between citizens more than justice within a location, government, society, or civilization. Between civic citizens, statutory law is not applicable but is utilized; enforcement is invited only by dissidents and criminals.

The-objective-truth informs us that human beings fail civic morality by infidelity that varies vary from ignorance, infirmity, mistake, impulse, etc. to criminality, brutality, and evil. The human body does not complete construction of the wisdom parts of the brain until a quarter century has passed, and a person builds wisdom at a pace that depends on his/her genes, memes and personal autonomy. Humans live in a world that is confused by social morality (humans need civic morality).

When civic collaboration produces the conclusion that an offensive practice must by challenged by statutory correction---a fine, incarceration, or loss of life---the punishment must be civically commensurate with the offense. The offenders causative actions and intentions must be weighed by civic collaborators. In some systems, a person who disobeys a traffic signal begs a fine, whereas a heinous murderer begs execution.

Societies who involve God in the determinations have not established civic justice.

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Phil Beaver
on November 10, 2017 at 03:33:01 am

I tend to an instrumentalist view of punishment. I want to take the action that I think will produce the best result prospectively. Yup, this entails some speculation. But when the alternative is to impose punishment without any objective whatsoever, acting on the basis of a best guess suddenly doesn’t seem so bad.

So, in imposing punishment, whose behavior do I need to consider? I consider the perspective of the accused, of other potential criminals, of a vengeful society, and of the taxpayer.

1. The accused.

At a minimum, I want punishment to deter recidivism. If the accused hates bearing the punishment, and concludes that she will be unlikely to evade the punishment if she commits the crime again, then the desired outcome is achieved. If the defendant feels remorse and has a change of heart, this may achieve the same outcome. But many crimes aren’t the result of careful deliberation, but are more the result of circumstance. For these crimes, feelings of remorse when calm, even when sincere, may not provide much insight into how people will behave when adverse circumstances arise.

Should the accused person’s youth matter? Well, I’ll say that the accused person’s age might matter.

As Garrison Keillor observed, one of the best legal outcomes is for a young suspect to barely get away with a crime—to feel the hot breath of his pursuers in order to maximize the fear of getting caught in the future, but to escape the stigma of guilt that would minimize the ability to turn over a new leaf. For the very young, a clean get-away may be the best outcome.

But where violence is concerned, these crimes are often associated with a lack of impulse control. And in young men, this is associated with a certain level of testosterone. A disproportionate share of violent crime are committed by men younger than 35. Thus, for violent crimes, the most instrumental sentence may be to be sent to jail until the age of 35. That means that younger people would, in fact, get longer sentences.

2. Other potential criminals.

Part of punishment is to make an example for the benefit of other potential criminals. And, let’s face it, that’s all of us.

So if, immediately after committing a crime, the accused confesses and expresses deep remorse. Great—perhaps we have no need to use punishment to modify the accused’s behavior. But we may still want to use punishment to modify the behavior of all the people who are observing the justice system. The accused may regard this as harsh. Then again, if the accused is truly remorseful, she might recognize the need to create examples to discourage other people from following in her footsteps.

But just as different crimes have different recidivism rates, and those rates do not correlate with the severity of the crime, so too different crimes have different rates of frequency which may not correlate with the severity of the crime. Contrary to duty, a U.S soldier abandoned his post (and his comrades) in Afghanistan, was captured by the enemy and held for five years under brutal conditions. The U.S. incurred great expense to secure his return. The US has a strong interest in deterring soldiers from engaging in this behavior in the future. But who, after observing his story, would be tempted to try? Under these circumstances, a judge concluded that no additional incarceration would be warranted—but the judge did impose sanctions that would, in part, recoup some of the added expenses.

3. Vengeful society.

Oh, and the judge stripped the US soldier of his rank and gave him a dishonorable discharge. I doubt this was to deter the soldier from engaging in similar behavior in the future. And I doubt it was to set an example for other soldiers who might have observed this saga and thought it sounded like a good idea. Rather, I expect this was to satisfy the desire of observers for vengeance for wrongful conduct.

I don’t favor this rationale, but I acknowledge it: At a minimum, by extracting vengeance in an orderly way, society helps to deter vigilante justice.

4. Taxpayer.

The US locks up a higher percentage of its citizens than any other nation. Why? In part because—we can! We’re rich, so we consume more of everything, including justice.

Poor societies can't afford this luxury. Indeed, when the US was poorer, we couldn’t afford it either. And even today, poor US neighborhoods do not expect people in authority to rein in all the criminals. I recall articles about remote Alaskan villages where sexual assault is common—but the police are far away, and the towns really can’t afford to lose any more members, so people just kind of endure it. If things get bad enough, townsfolk resort to vigilante justice.

That said, one consideration in deciding on punishment is the allocation of scarce resources such as prison cells, angle bracelets, parole officers, rehabilitation circles, etc. A Three Strikes law may modify the behavior of the accused, may modify the behavior of potential criminals, and may satisfy a social desire for justice—but it may also create a prison full of geriatric prisoners. The harm these prisoners are likely to do to society outside the prison walls pales in comparison to the harm they do inside the walls, racking up major age-related medical bills.

What problems arise from instrumentalism?

A. Many lesser crimes (e.g., speeding) have high recidivism rates, while many serious crimes (e.g., killing your dad) have a 0% recidivism rate. For purposes of influencing the behavior of the accused, an instrumentalist would prescribe a harsh punishment for the speeder, and no punishment for the father-killer. But when the perspectives of other criminals, vengeful society, and taxpayers are taken into account, it's likely that the punishments would be readjusted.

B. Does instrumentalism result in unequal protection of the laws? Well--kinda; kinda not The instrumentalist would apply the law equally to people in equivalent circumstances. But the instrumentalist might take into account different circumstances than non-instrumentalists would.

C. What about the conscientious objector—a person who knowingly and deliberately violates the law with the full expectation of being punished. For such cases, instrumentalism would prescribe the death penalty. After all, how else can you deter people who are otherwise not self-interested? So, yeah, this is a problem with instrumentalism….

D. Letting Three Strikes criminals out before they die may result in roving bands of octogenarian hoodlums in hoodies....

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nobody.really
on November 10, 2017 at 11:07:17 am

Interesting!
Wish I could find the study re: Plus 35 age rate of recidivism (but the kiddies are around) which indicated that the 35 year threshold for recidivism is NOT so hard and fast. Data from the onset of the "stiffer penalty" regime of the 1990's tended to indicate that the reason for the apparent drop in over 35 crime was that MANY of that age were in fact prevented from committing new crimes by virtue of the fact that they WERE still in prison. It further indicated that many of those later released would once again find comfort in the security of a prison wall after having committed another offense against the populace.

As for me, I say "Let's get medieval" - (great line from Pulp fiction, BTW)

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gabe
on November 10, 2017 at 14:50:09 pm

Wish I could find the study re: Plus 35 age rate of recidivism (but the kiddies are around) which indicated that the 35 year threshold for recidivism is NOT so hard and fast. Data from the onset of the “stiffer penalty” regime of the 1990’s tended to indicate that the reason for the apparent drop in over 35 crime was that MANY of that age were in fact prevented from committing new crimes by virtue of the fact that they WERE still in prison.

Ha! I'd be interested in seeing that.

It's true that our recent high incarceration rates make it difficult to know how well we can compare today's crime statistics with statistics from earlier eras. There's a broad thesis that crime is a function of circumstances: when, say, the economy crashes, more people turn to prostitution and drugs for a living. Then there's a broad thesis that says that crime is a function of personality: certain people have impulse control or chemical dependency issues. Clearly both factors play a role.

But the high incarceration rates would seem to provide a natural experiment: When we lock up people who have demonstrated a tendency to commit crime, what happens to crime level in the rest of the population? Does the crime rate drop because they see the high incarceration rate and fear incarceration (a change in circumstance)? Or does the rate drop because everybody who is prone to commit crime is already in prison?

I have no ideological commitment to the 35-year threshold, or any threshold. I'm entirely willing to let judges be persuaded by the latest research.

And, yup, that would result in judges changing their pattern of sentences. Thus, a person who was convicted last year might get a different sentence than a person who is convicted next year, because new research has come out regarding recitivism rates or whathaveyou. I suspect this variability and inequality would drive Dalrymple crazy, but I'm gonna roll with it.

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nobody.really
on November 10, 2017 at 16:25:44 pm

Data in the study came from DOJ stats BUT it was not a DOJ effort.

You raise a good question: what happens when all the "baddies' are sitting in prison. Preliminary observation would indicate that NOT MUCH happens. For a host of reasons (speculations, perhaps) we seem to have no problem finding suitable replacements.

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gabe
on November 10, 2017 at 18:05:32 pm

Then again, perhaps it is not at all surprising that we *find* enough "replacements for retiring criminals as it appears that our government is intent on manufacturing new ones with a plethora of new *crimes*.

Check out the link - you'll like it:

https://townhall.com/columnists/clarkneily/2017/10/30/if-the-law-is-this-complicated-why-shouldnt-ignorance-be-an-excuse-n2401290

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gabe
on November 21, 2017 at 12:41:58 pm

Punishment without deterence is simply vengeance.

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Jerym eedy
on November 28, 2017 at 07:35:10 am

As for the religious aspect of remorse and forgiveness, we should not forget that, in traditional Christianity, sincerely repenting criminals and other sinners never asked for their punishment to be cancelled or made less severe. They patiently endured the punishment that the authorities applied to them. And when authorities did not apply any, they punished themselves quite severely.

Thus, if a criminal says that he has repented and asks to be set free, he has not repented in the Christian sense of the word.

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Anton

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