My mother was a sociologist. When I was about 18 years old, I recall her telling me that we could evaluate and quantify extant social justice in a particular society by the fraction of its population that it held in its prisons – the relation being inversely proportional. And, though she didn’t say so expressly, I always understood that she meant killing too. If a governing authority kills a thousand and imprisons a thousand, it is not really any different from that same authority killing two thousand, or for that matter imprisoning two thousand.
The more incompetent the governing authority, the more necessary will be the infliction of various sorts of attempted deterrents and intimidations – and these in the conspicuous and unambiguous form of oppressions. If you’ve ever seen the motion picture Apocalypto, then you know how extreme political oppression can get. But what we do not realize as we sit in the theater and enjoy a motion picture like Apocalypto is that we are seeing an ilk of depravity that is associated with utter incompetence in government. The government will seek to intimidate with threats of various sorts because it has not competence, no ability to gently and intelligently and coherently incline the individual to preferred behaviors. The government uses overt oppressions. Then the government needs to do more of the same, and the numbers killed and having their houses burned, their communities ravaged and being imprisoned increases. Then it happens more and more. Finally, you arrive at what the Spaniards encountered in the Aztec ‘government’ in Mexico in 1519 and 1520: a daily festival of depravity.
It is important to recognize what we are talking about here in the most expansive philosophical sense: How righteous and vindicated are the punishments of governments and their proxies, their legal systems? How justified is punishment? Of course competent governments will act on behalf of public safety and order! But we often see punishment oriented to the deliberate infliction of suffering on the accused and/or condemned offender. The government pretends this suffering is a necessary of effectual justice. But is this so? How like the Aztecs of the early sixteenth century do we really need to be?
Have you ever walked by the front of a gourmet bakery and glanced, then gawked at the incredible goodies on the other side of the window? Have you ever ventured inside? Did you then buy? Did you eat what you bought? Did you enjoy it? I must have eaten thousands of pastries in my lifetime. Why? It was not for any altruistic, noble, estimable or responsible goal of any kind; it was for the elementary and transient experience of the eating, and nothing else!
I have watched many American football games – many hundreds at the very least – and I thoroughly enjoyed them. Those experiences likewise were not aimed at any civic responsibility, any rectitude or conscientiousness, any ‘spiritual’ virtue, nor anything of use to the rest of humankind, nor of the slightest usefulness to any animate creature that slinks upon the surface of the earth; I watched the games because it was fun.
And when I romance my wife it is the very same.
We engage plenty of things knowing all the while that there is no long-term benefit to anyone in our doing them, and only a very short-term gain to ourselves very personally.
When we “think” upon matters of justice and the proper treatment of malefaction, often ours is ingenious, adroit magic, and our cogitation amounts to self-deception; we imagine that our taking a certain view of justice in a particular matter is based on moral scruple and the defense of the defenseless, a recognition of what is necessary and right, an affirmation of dignity. It were as if we we’d been kept in a cave, entirely away from all social interaction for all our years, and had never been influenced by any affirming and reaffirming culture. Our ideas are pure and sublime – so we think. And all the suffering we advocate, all (our) destruction and malevolence we reflexively pardon, is all a cogency and sagacity and matters of justice.
We all have been profoundly influenced by our culture and society, of course. So, this is the place where we’ve gone entirely astray, where we’ve completely hoodwinked ourselves. Our treatment of criminality, and especially the most heinous criminality, arrives very substantially from two considerations: 1) what we emotionally want, and 2) what we’ve been led to think from by a pervasive and influential superculture. And in this we have been indeed utterly misled, because we failed to consider how so much wantonness and violence we condone in the very same way that the majority within our culture and society condone it. At least when we’re in the bakery we are partially aware of what we’re up to; we know we’re engaging an indulgence. But in our mental gymnastics in the matter of justice in regard to horrific criminal violence never brings such self-awareness, and we give our support to every sort of cruelty and viciousness. The unvarnished truth is, we are – most of us, that is – biologically incapable of thinking both deeply and dispassionately about a person’s (or persons’) most vile and inhuman misdeeds. Tendentious nature has afforded us a reflexive revulsion in such matters, and that experience of revulsion works to obscure any ken or interest in what is objectively useful or creditably civilized. Then we commit every sort of misdeed with ourselves cloaked in the comforting guise of the heroic avenger.
Crime, victimization, and punishment are not new inventions; they extend back into prehistory. Prehistoric peoples were faced with the terrible dilemma of having to preserve social order and security within the reality of having virtually no latitude to be merciful. Mercy and potential mercy is always a luxury that arrives of practical feasibility, and prehistoric peoples lived a most onerous existence, with threats and debasements of every sort to be surmounted every day. And various sorts of killing and ostracism were the expedient devices of prehistoric tribes that had to treat the most egregious transgressions of their members.
Ostracism was a severe punishment – often as severe as death – because the person so dealt with was dependent on the tribe (or equivalent social organization) for his or her spiritual and physical well-being.
Many societies and tribes simply killed individual members who they believed behaved in an unacceptably violent, traitorous, transgressive or offensive way. (Note that I write “believed”. We would like to conflate the accusation and the guilt. As I have stated, such is our great ignorance in this matter!) An economically destitute society, inclusive of all prehistoric societies, is bereft of options.
And when ancient societies developed law, their laws reflected the values, customs and expedient policies of the extant culture, of course. After a society developed a system of writing, unconstrained killing continued the same way as it had been essentially forever; the advent of writing does nothing immediate to challenge the acceptance of inured oppressive practices. One among the literate elite could then read what the prescribed punishments were for each offense – such as wearing the wrong clothes, failing to address your betters properly, not fasting at the right time, not being present for a particular religious ritual or meeting, or criticizing the leader or accepted conception of god. And maybe he or she would be reading different punishments for different classes of people, not reading a standardized punishment system for all people of all classes and segments of society. In ancient times, in many societies, slaves, for example, were subject to a separate legal code than were free persons. In real historical human experience, often punishment and virtuous justice had no direct correlation; often punishments, as we look back impartially from a distance of decades and thousands of miles, were, frankly acknowledged, vulgar predations; punishment was the fate of not the guilty but the veritably hapless.
In modern times we are met with a massive array of laws upon laws, and there are so many thousands of them that the police themselves cannot possibly always know what is and isn’t legal. Suffice it to state here that the foundational purpose of law is to guide our intention to afford security to persons and property. In this effort, a multitude of governments have in the past several centuries threatened would-be “criminality” with ordeal punishments from stoning to death to drowning to disemboweling to hanging to drawing and quartering. And these fates befell countless thousands who were found guilty by some court or tribunal, or unfortunate persons who were captured by guilt-mongering mobs of vigilantes who “knew the law” and had arrogated its enforcement to themselves. Know it: punishment has always been available to not only the guilty, but the powerless and the disenfranchised as well.
Peoples all over the world have deeply inured traditions of punishing, and it is commonplace for people to become so acculturated in the vulgar, casuistic and self-righteous mindset of justice as punishment that they often reckon that there are only the punishment of wrongdoing and the non-treatment of wrongdoing and absolutely nothing else fathomable beyond these two.
Really? Nothing?
There is a third option that stands fully at odds with the tactics of the Aztecs. We might – if our aim were only the security of persons and property and the upholding of fundamentals of societal order, and maintaining civilizational values – uncouple punishments themselves from the necessaries that have been for so long deeply and cleverly embedded within them. Doubtless it is necessary to render harmless or to disempower those among us who demonstrate a substantial threat to social order, for example the sociopath who will likely kill many more people if he is not somehow incapacitated. But we’re not prehistoric cave people, and political economy has progressed very far from the erstwhile need to kill or vulgarly oppress the offender, as there are now hundreds of large prisons and millions of people imprisoned. Prisons are created to allow us to protect ourselves and also to avoid the extreme policy of killing and imposing ordeal torments as sanctions against every sort of offense. Let us examine recent history and how insidiously (a governing authority) punishing and (a governing authority) acting in defense of reasonable social order have been so cleverly and continually conflated. In this effort at illustration, I offer here a personal anecdote.
When I was in New Jersey in 1998 I was a caretaker of the grounds and buildings owned by a local religious group. And one of my many chores was to set a few metal traps to catch squirrels that were creating a bit of a nuisance on the grounds. I set two of them in the basement of the caretaker’s house. One day we caught a squirrel in one of the traps and I asked a man who had authority to represent this tax-exempt “religious” community what we were intending to do with the pest in the cage. He advised in utmost seriousness that the wire trap with the animal caged inside must be taken to a small lake about two miles distant and the trap must be submerged in the water, drowning the animal.
With no enthusiasm for unnecessary killing, I asked the man why we were not just bringing the cage a few miles away and releasing the animal into the wild, and in near-indignance he answered, “They come back!” And I replied unhesitatingly and incredulously, “The same ones?”
That was, as you might expect, the end of the conversation. I afterward assumed that the little growling creature in the cage did not die of natural causes.
You see, it wasn’t the same ones that would “come back.” But it does not matter when you are the one with all the unchallenged power to oppress. That man held all the power, and that tiny one pound animal none at all. The squirrel’s death was predicted not because of what he (the squirrel) was or what he had done, but because of his vulnerable condition. The powerlessness of being in the trap killed the squirrel more than anything all the squirrels had ever done!
You see? We always punish and kill in large part because of what we are and not exclusively – as we imagine – because of what the victim has done. The squirrel was killed because that man himself felt anger at squirrels generally, and in his flailing anger he sought something upon which to vent his wrath. Injustice occurs, one way or another, or to some degree, whenever justice is understood to be, or claimed to be, in the aversiveness of the punishment itself.
For purposes of clarity, it is necessary at this point to give definition to what is meant herein by the term “punishment”. What comes to mind when we hear or read the word? When someone accidentally hits his elbow against the side of a door or the back of a chair, or when a toddler falls and hurts himself, we do not think of the resultant suffering as punishment. No. We invoke the term when we want to communicate that there is some deliberately aversive aspect to the way one or more people are being treated. Definitional punishment is all about intent. If we intend that the person or persons “punished” suffer, and our design is – at least in part – imposed suffering, then we appositely call it punishment.
In 1998 I was also involved in a human rights effort among Christian clergy in New Jersey. And one day I was lunching with several Christian ministers at a local diner. I had been invited by the Presbyterian minister (then present) to talk to all of them about the death penalty. Two of the five ministers were obviously supportive of the death penalty (although their respective national church teaching on the issue was oppositional). Our conversation drifted. We began to discuss oppressive practices and traditions more generally, and we began to discuss spanking and similarly violent forms of “disciplining” children. The minister from the Lutheran church said he believed such actions were acceptable. And my remarks in the next moment were surely understood by all to be directed specifically at him.
“I know a man at my church,” I began, “who is a defense attorney. Right now he has a client who is certainly guilty of killing his own son, a toddler something just less than two years old. The child died, you must know, from being beaten by his discipline-approving father,” I said, my tone betraying indignation on the word discipline. “Now the prosecutor in this case is trying for the death penalty. And I’m sure,” I continued, “that when you advocate the use of violence against children, you imagine that you are in no way implicated – if not actually ever charged – in any sort of capital crime!”
I remember that the holy man did not look happy with me, nor with himself, as he tersely responded.
The father killed his son consistent with the all of the enduring exculpations of his domineering political culture. And his basic conduct was not any aberrance; there was only the whoopsy daisy outcome.
Do you see, reader? We oblige punishment, but is what we prescribe really unassailable justice? Or is it, when all is candidly and impartially appraised, wantonness and opportunism? The truth is, part of the reason we smack somebody is because we believe we can somehow get away with it.
And finally, there is a cause-effect relationship familiar to us all. A father in his late twenties warns his son, a precocious and inquisitive three year-old, not to venture too near the oven when it is on, as he might get burned. The child eventually forgets the instruction and goes near the appliance. The father warns him sternly. Then another transgression and another warning. At some point the child is smacked across the face and he runs into the bedroom crying. And what more evidence do we need than this to see the child finally turn from his criminal ways in the face of effective “discipline”?
Yeah, we imagine that the child has been guided rightly by his father’s actions. But what we did not see was that the child went speedily into the bedroom and there found his tiny one year-old sister playing with his toys, and he smacked her. What we also did not see was the future of that toddler thusly treated by this father. Criminological studies reveal something quite contrary to what the oppressive culture taught us to believe: the child of violence grows up to be violent himself. This child in the above story goes on to be convicted of multiple assaults as an adult, and he is sent to prison. The injustice he met at the hands of his tyrant-father contributed to his being added to a prison statistic.
It has always been a good idea to minimize any sort of vindictive or oppressive treatment of transgression and malefaction. And the technological ramifications of modernity make the eschewing of violence and oppression all the more urgent. At some point we will each be capable – or easily capable, potentially capable – of doing great harm to thousands or millions of souls. Let us hope that at that time we who claim a role and a voice in the advancement of meritorious civilization have arrived at values more enlightened and honorable than mere base opportunism. Let us in all sagacious consciousness and awareness abandon punishment entirely! In a nuclear and WMD world, that simple policy may be essential to any coherent civilizational strategy of survival.