Craig Lerner discusses the political, philosophical, and moral implications of the death penalty.
The President of France, M. François Hollande, has spoken repeatedly of ‘punishing’ Syria. It is not easy to know precisely what he means by this, since he has also stated that the object of such punishment would not be to overthrow a regime whose one object appears to be to remain in power at all costs, among other reasons in order to avoid just punishment (for its extreme brutality is certainly of no recent date). This regime seems also to have no qualms about inflicting death upon the citizenry under its jurisdiction, so a little collateral damage consequent upon symbolic bombing will hardly cause it to change heart. It is difficult, indeed, to see what purpose M. Hollande’s punishment could possibly serve, other than the relief of the virtuous feelings of M. Hollande himself.
To say that the President of France is now viewed with contempt by many of his countrymen is considerably to understate matters. During a televised debate in the last presidential election, M. Hollande made a famous pseudo-extemporaneous speech in which he said emphatically ‘Moi, président, I would do this, moi, président, I would do that, moi, président , I would do the other thing…’ After his election, a satirical television programme changed a vowel and called him Mou président (Soft or feeble president), and that is how most Frenchmen now see him – Mou président.
Perhaps, then, his belligerence towards Syria is best seen as an attempt to prove to his electors that he is a firm and decisive leader in the face of evil. If so it certainly has not worked, quite the contrary, for he has yet to persuade his countrymen that any of their vital interests are at stake or that his proposed strategy would result in benefit rather than harm. They are perhaps aware that theirs is the first country in the world in which massacres were carried out in the name of the Rights of Man. And the fact that France could not possibly do anything without the leadership of the United States, whose decision to act against Syria had not been taken at the time M. Hollande made his own threats, has made him appear even more maladroit, weak and foolish than usual.
The wish of the leaders of Britain and France to interfere militarily in distant countries consorts ill with their policy of reducing expenditure on the armed forces the better to preserve their ability to keep their populations quiet, or quiescent, by means of government subventions of one kind or another. But even that aside, M. Hollande’s choice of word, punish, seems to me odd and ill-chosen: for one can rightfully punish only those whom one has some constituted authority: and France has not been the mandatory power in Syria since the end of the 1940s. It seems unlikely that the United Nations, given the stance of Russia, will ever give France (or any country else) the supposed legal authority to act against Syria, and therefore if M. Hollande acts at all it will have to be on his own moral authority, of which he has very little.
There is yet more: for as punitive as M. Hollande wants to be towards Syria, over whom he has no jurisdiction, he is as lenient to criminals and delinquents in what the French call the Hexagon, which roughly captures the cartographic shape of their country, for which he does have considerable responsibility. Here his policy is not to imprison malefactors, but to give them the kinds of punishments that, across the Channel, have been proved not to work, neither as deterrents, correctives or – most importantly – as preventives.
The left has never been easy with the idea of prison because the majority of those imprisoned are not only poor, but guilty of property crimes; and in its heart of hearts, the left still thinks that property is theft and crime as a kind of spontaneous redistributive justice. To imprison anyone, therefore, in the name of property is to commit injustice.
M. Hollande’s minister in charge of reducing and even suppressing prison sentences, is a remarkable person, a black woman from French Guiana, whose personal, self-made fortune is said to be about $200,000,000. As one might expect, she is a forceful person, and she has managed, with the help of academics and journalists, to insinuate into the minds of the French that what counts in penal policy is the rate of recidivism after the punishment has been completed. And the rate of recidivism after imprisonment is high, especially in comparison (so it is alleged) with other forms of punishment such as probation, involuntary work for the community and so forth.
In what might be called the house journals of the French left and centre-left, Libération and Le Monde, I have not seen a reasoned reply to this argument which is obviously false for a number of reasons. First the comparison is very difficult: those who are imprisoned are usually already recidivists or serious criminals, which is why they are sent to prison in the first place. Most of them have already gone through the non-imprisonment type of punishment. Second, and more importantly, the comparison is usually made on a false basis: for example the recidivism rate two years starting from the date the sentence is given in the case of those who are given sentences outside prison on the one hand, and two years after release from prison on the other. This is quite wrong, and inherently biased against the efficacy of imprisonment, because the time spent in prison, when the prisoner is prevented from committing further crimes against the public is not counted. Furthermore, the rate of recidivism is on a binary measure: either the person has re-offended (actually, has been re-convicted) or he has not. For this measure, a hundred offences count as one; and since most recidivists do not re-offend only once, but several or even many times, the rate of recidivism does not capture reality in any useful fashion.
Nor does or can the rate of recidivism capture the dissuasive power of prison in a general sense. If there were no imprisonment, and no possibility of imprisonment, would anyone think that many kinds of crime would increase in frequency. People, even those who are generally law-abiding, do not stick to speed limits because they are persuaded that it is dangerous to others for them to break them; they believe on the contrary that they are such good drivers that when they break speed limits, there is no added danger to others. If they keep, more or less, to such limits, it is because they fear fines or to lose their licenses. The rate of recidivism of individuals after imprisonment cannot possibly capture the dissuasive effect of prison in general, therefore.
The reason why the rate of recidivism in itself is of no possible interest to the general public can be illustrated by a thought experiment. Suppose the rate of recidivism after a term of 10 years in prison is 100 per cent; suppose also that the person who reoffends after such a sentence is caught immediately on reoffending, and sentenced to further imprisonment.
Suppose a similar criminal is sentenced instead to probation and the rate of recidivism after probation is only a tenth of that after imprisonment, that is to say 10 per cent, but that each recidivist commits 20 offences a year (a very modest supposition, incidentally). On average, then, the criminal sentenced to probation will have committed 20 offences; if he had served 10 years in prison, these offences would have been prevented. In fact, of course, prison is much more favorable to the public than these figures suggest.
The public wants to be protected against crime, not against recidivism, and it is clear from the little thought experiment above that these are not at all the same thing. But in France, the debate is about entirely about the latter, the rate of recidivism. It is depressing to find that no one points out the false premise of the entire debate.
In Le Monde there was an article by a director of a national research unit who said that the debate about penal policy was entirely about empirical matters, that is to say the best trade-off between the rate of recidivism and the costs of punishment (prison being very expensive). This is more or less the attitude of the French government but the debate is, of course, about no such simple thing. Where, for example, does justice come in it? If one is persuaded immediately after his offence that a murderer will not commit another murder, would it therefore be right not to punish him at all, this giving the best possible trade-off between the rate of recidivism (zero) and the costs of punishment (also zero)? It is obvious, then, that penal policy is not just about supposed trade-offs crookedly calculated.
Furthermore, to punish people on the basis of a speculative statistic that applies to a group of people and not to individuals is inherently arbitrary and unjust. Punishment must be of the individual, not of a statistical chance of being or becoming a member of a group. Under the rule of law, one punishes people for what they have done, not what they might or even will do. Extenuating (and aggravating) circumstances must of course be taken into account, but they too are facts about the past, not hypothetical constructs about the future. Recidivists are punished more severely not because they are more likely to offend again, but because they have offended again. No man may know the future; but we may know something of the past beyond reasonable doubt.
Finally, it is odd how the left in France (as in Britain) can never quite grasp a rather simple fact: that while it is true that most offenders come from the lower end of the economic spectrum, so too do most of their victims; and that, since the class of victims is always much larger than the class of perpetrators, each perpetrator making many victims, it follows that attempts to cheapen the cost of punishing the offenders by incapacitation are the means by which the rich attempt to keep the costs of crime strictly where they arise, namely among the poor. Actually, the imprisonment of criminals is a benefit received by the poor, though it is poor people who are imprisoned. We see now why Madame Taubira, with her large fortune, is against prison. Though perhaps she doesn’t know it, she is defending the interests of the rich, at least for now. Burglaries increased by 7 per cent last year in urban France, and by 11 per cent in rural areas.
The most alarming thing about the French government’s penal policy is that the concept of justice not only does not enter into it, but is clearly not understood. I don’t think foreign countries should be ‘punished’ by such a government.