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Sorts of Punishment

His mother waited in the corridor outside the courtroom, just as she had promised him she would, while the judge passed sentence. Although his remorse had been complete the judge was harsh, and his sentence maximum. When I stepped out into the corridor to tell her what had been said, she collapsed into my arms.

For the past several months, before and since the sentencing, I've been working very closely with his family, and (especially now) with their frustration at a system that will obsess upon the crime while resisting— even obstructing— the recovery. All our efforts at providing for his rehabilitation seemed useless in the face of society's demand for vengeance. The irony of course is that nothing ever is really resolved in this way— not really.

Admittedly, these words are being written in reaction soon after the sentencing, but I wonder: what is it that we want released back into society when his term is served? —a man fully rehabilitated, capable of contributing to society, or a man now institutionalized, kept our prisoner one way or another, not because of his crime but because of our fear?

When I began to tell him afterwards how defeated I felt in our failing him, he stopped me, saying, "it's important to me that everybody knows that I feel everyone went beyond the call. No one fell short: everyone's prayers and love was enough. We need to forgive each other; if we don't, it means I'm doing this for nothing, and I don't want it to be for nothing. If we can't stop all the hate and start forgiving this moment, then I'm going to prison for nothing. We must all have sympathy and compassion."

When our legal system contemplates punishment for a crime, three sorts of punishment are considered: rehabilitation, restitution, and retribution. Each serves a different agenda. Where restitution seeks atonement by means of compensation for the costs of the crime, rehabilitation attempts to foster and develop the insight and empathy needed to ensure the crime would never again be committed— each reasonable consequences, responsible steps to be taken.

Retribution, too, is a reasonable consequence, in balance. It intends to have the perpetrator experience a punishment in some way congruent with the way in which the victim has suffered. This displacement of the original injury serves two significant purposes: to help the perpetrator break through an initial denial in a recognition and acknowledgment of the impact of the crime, and to provide a catharsis of the victim's emotional distress. In this way a door can be opened to establish rehabilitation, even as the victim can feel a sense of closure. The problem is when retribution is not in balance, but is instead the harsh sort of revenge exacted by a society that would perpetuate rather than resolve an atmosphere of violence.

When the perpetrator is being scapegoated, is being punished by the accumulated anger society has already associated with crimes of the sort committed, he or she then becomes the victim— and so the cycle must continue. A society that pursues retribution to the exclusion of rehabilitation is clearly not interested in satisfying justice by bringing the crime to an end. Here retribution becomes a regressive form of punishment, one that hardens the heart in order to look backwards toward the crime and preserve it one way or another, while restitution comes present, comes to terms as compensation for the cost of the crime is sought. Rehabilitation alone looks forward toward the future, to the time when the crime need never happen again.

Here I could provide the inevitable statistics that address recidivism: how many return to prison a second or third time, and (worse) how many die before being able to leave for the first time. I could speak of a system that would privatize the Department of Corrections as a growth industry with a seat on the NYSE, budgeted now in excess of the Department of Education. I could wonder aloud just what it is they believe they are correcting, and how they believe they are going about doing that. Ultimately, I could wonder aloud about the purpose of law.

As the purpose of religion is to organize certain fundamental moral values to support and inspire the integrity of a society, so the purpose of law is to establish and maintain order to give those values tangible form. And yet, as inevitable growth encourages diversity, there is the risk of drifting from the fundamentals that bind a society into a working whole while factions within it begin to compete for attention and control, distorting the original integrity of the community into something that would favor their own personal agendas. Here I begin thinking of lawyers.

I remember a conversation with an attorney many years ago, over lunch after a trial had gone into recess. As clearly as I can recall, he said something along these lines: "you have altogether the wrong idea about truth; you don't understand that truth is arrived at by cutting away all the irrelevant data, reducing events to their fundamental cause."

"Yes," I replied, "for me truth includes that, along with everything else, because for me truth is arrived at by a process of accumulation rather than elimination." Our positions were not as opposed as he had believed (and continued to believe); they were nested, his within my own. My view of truth included his, while his could not conceive of mine. There are, after all, two kinds of people: those who believe there are two kinds of people, and those who do not.

All this may seem philosophical hair-splitting, but when sentences are pronounced upon an individual by a society, the entire context of the person— the entire fabric of the human condition— must be taken into consideration, else our prejudices must erode our civilization. Causes (and their retribution) are of interest, of course, but they are illusory redactions, and usually simplistic assumptions after the fact.

Hindsight may be 20/20, but always with a certain astigmatism. Our presumptions will distort our sense of proportion and therefore our perceptions as well; they distract us from the more important work of finding the final resolution of a social wrong, of moving toward finding a purpose in life, and the healing purpose of life.

Holding his mother, there in the corridor outside the courtroom as she wept, I could only think of those glum words recorded in Luke: "Father, forgive them, for they know not what they do."

This article previously appeared in The Listener: volume four, issue two (Summer 1999).

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