For some contemporary criminal justice reformers, devotion to ideology leads to illogical conclusions about human nature and character change.
In the year of my birth, which now seems to me a very long time ago, C. S. Lewis wrote a short and incisive essay entitled The Humanitarian Theory of Punishment (link is no longer available). In this essay, Lewis drew attention to the potential for tyranny of this seemingly humane theory, according to which people were to be treated not according to their deserts, but according to what would make them ‘better’ on whatever scale of goodness was adopted by the therapists, who of course would also decide whether or not the wrongdoers were ‘cured.’
The horrors that Lewis foresaw as following from the humanitarian theory of punishment were those of cruelty and oppression disguised as benevolence. What he did not foresee was irresponsible and self-indulgent leniency disguised as benevolence. Under this new dispensation, it was not those who had been wronged who would exercise mercy, but those at several removes from the wronged, and who themselves would never suffer the practical consequences of its exercise, if any such there were. They would enjoy the psychological rewards of leniency without experiencing the material effects of recidivism.
It is hardly any secret that no one these days enjoys a reputation for generosity of spirit (at least among intellectuals) by advocating more severe penalties for wrongdoers; or that an easy way to secure a reputation for broad understanding is to forgive everything. Pardonner tout, c’est tout comprendre. The pressure on those who want to bask in the esteem of all right-thinking people to forgive those who have done wrong to others is therefore considerable. C. S. Lewis, I need hardly add, lived at a time when psychotherapy was a long, arduous and even never-ending process; he did not live to see the advent and triumph of the so-called brief intervention that could allegedly cure the mad, the bad and the sad in a few sessions.
In France there is currently a court case that glaringly exposes the inhumanity of the therapeutic approach to life, at least when it is carried beyond its proper sphere. In November, 2011, the charred body of a young girl called Agnès Marin, nearly 14 years of age, was found in some woods near the village of Chambon-sur-Lignon, previously famed because its inhabitants had saved the lives of hundreds of Jewish children during the war.
The girl had been tortured, raped and murdered by a boy known for the moment as Matthieu M. who was then aged 17. The murderer and his victim had attended the same boarding school in Cambon-sur-Lignon, an establishment for somewhat disturbed adolescents.
But Matthieu M. was more than somewhat disturbed. Fifteen months before the murder, he had held up a girl called Salomé F. with a knife, tied her to a tree and raped her. He was already by then a smoker of cannabis and an aficionado of violent pornography.
He spent four months on remand, during the course of which he was examined by two psychiatrists who decided that it was possible to reintegrate him into society. A judge accepted this opinion and sent him to the boarding school in Chambon-sur-Lignon, supposedly under some kind of official supervision.
Since the commission of the crime he has been re-examined by (different) psychiatrists. The change in psychiatric opinion would be comic if the case had not been so tragic. According to Dr Aiguesvives, one of the first two experts to examine Matthieu M., was ‘sincerely and authentically self-critical.’ Dr Aiguesvives said that he committed his first rape because of an ‘induced and transitory pathology,’ a kind of temporary madness, that he had no permanent perversity, and that he was therefore not dangerous. The two psychiatrists who examined him after the murder, by contrast, found that he ‘describes his desire to annihilate and destroy his victims, of whom he speaks as if they were objects. The perverse personality traits of this young man are therefore manifest and very disquieting as far as the prognosis is concerned.’
No doubt the task of the second pair of psychiatrists was easier than that of the first; but even so, common sense would suggest that the character of Matthieu M. did not change very much between the two crimes. It is difficult not to come to the conclusion that Dr Aiguesvives’s opinion was frivolous, shallow, careless and incompetent. After all, you don’t need many years of training to know that holding a girl up at knifepoint, tying her to a tree and raping her is far beyond the rage of normal adolescent experimentation. Indeed, it would seem from this case that it takes years of special training to drum such common sense out of you.
However, this is not the only aspect of official stupidity, which like Matthieu M.’s pathology was ‘induced,’ but not, alas, merely transitory: induced and made long-lasting by the therapeutic ideology. The judge who decided to release Matthieu M. was under no legal or moral obligation to accept the fatuous opinion of the first psychiatrists; on the contrary, he had an obligation to decide for himself.
If anything, the fault of the judge was greater than that of the psychiatrists, who after all made only an error of judgment as to fact: a ridiculous error, no doubt, but still only an error of that kind. By contrast, the judge made a much more fundamental error, which showed a complete lack of understanding of his duty, or alternatively an understanding of his duty that was and is extremely dangerous for society.
To see that it is so let us conduct a small thought experiment. Suppose that the first psychiatrists had been right, and that Matthieu M. had not gone on to commit a further, even worse crime. Would it have been right then to release him from custody after only four months? Or, to use a reduction as absurdum, if the psychiatrists had been able to come to a correct prognosis only the day after he committed his crime, would it then have been right to release him without further penalty?
This could be so if and only if the sole purpose of punishment were the reform of the criminal; if and only if the sole justification of punishment were therapeutic.
I am not setting up a straw man, far from it. The therapeutic concept of punishment goes back quite a long way. For example (and I quote from my own very small criminological library), Edward Carpenter wrote in 1905 in his Prisons Police and Punishment: An Inquiry into the Causes and Treatment of Crime and Criminals:
In general it is obvious that the treatment of Crime in the future, as far as it is the result of evil and anti-social passion, must approximate to the treatment of lunacy and idiocy.
In 1924, Clarence Darrow, the famous lawyer, wrote a little book entitled Crime: Its Cause and Treatment in which he said:
Before any progress can be made in dealing with crime the world must fully realize that crime is only a part of conduct; that each act, criminal or otherwise, follows a cause; that given the same conditions the same result will follow for ever and ever; that all punishment for the purpose of causing suffering, or growing out of hatred, is cruel and anti-social; that however much society may feel the need of confining the criminal, it must first of all understand that the act had an all-sufficient cause for which the individual was in no way responsible, and must find the cause of his conduct, and, so far as possible, remove the cause… It is fair to presume that this new effort of science may be able in time to solve the problem of crime, and that it may do for the conduct and mental aberrations of man what it has done for his physical diseases.
In 1968 the then-famous psychiatrist, Karl Menninger, published a book entitled The Crime of Punishment. In it he wrote:
We must renounce the philosophy of punishment, the obsolete, vengeful penal attitude. In its place we would seek a comprehensive, constructive social attitude…
My 1977 revised edition a book by the famous psychologist, H. J. Eysenck, Crime and Personality, ends:
In summary, modern psychology holds out to society an altogether different approach to criminality, an approach geared only to practical ends, such as the elimination of anti-social conduct, and not cluttered with irrelevant, philosophical, retributory and ethico-religious beliefs… We have now reached the point where we can hope to combat crime effectively; shall we have the courage and wisdom to give up our ancient hates and fears, grasp the opportunity?
Well, the opportunity was well and truly taken in the case of Agnès Marin and Matthieu M, with what result we have seen. The peculiarity of this approach is that it allows every man a rape or many rapes – indeed many crimes of any description – provided only that experts determine that he will now desist, for prognosis is everything and justice nothing, in the sense of retribution for past misdeeds, nothing. Even if prognosis were a science much more accurate than it is or ever likely to be, this would do tremendous violence to our sense of justice. If you believe in the therapeutic theory of response to crime, you would have set Heinrich Himmler free, had he survived, because it was unlikely in the new political circumstances that followed military defeat that he would ever have committed similar crimes again.
This leaves deterrence, in which the more pragmatic of the therapeutists might still believe. But there is no reason to suppose that a law which holds individuals responsible for their acts is more deterrent than one which holds collectivities responsible for individuals’ acts. The German policy of threatening to shoot a hundred innocent people for every German occupying soldier or official killed might well have been a very effective deterrent, much more effective than trying to find out who had actually done the killing and punishing him severely. The therapeutist cannot appeal to justice as a reason to object to collective punishment because he has rejected desert as a grounds of punishment. Justice in this sense is, for Dr Menninger, itself unjust.
The moral of the story is not that Dr Aiguesvives should be removed from the list of experts, as Agnès Marin’s grandfather not surprisingly wants. Nor is it that foolish psychiatrists should learn, as Hamlet learned, ‘that one may smile, and smile, and be a villain.’ It is, rather, that the criminal justice system is not a mere adjunct to the clinic, any more than the clinic is an adjunct of the criminal justice system, even if, inevitably, their paths sometimes cross.