One major purpose of punishment for crimes is deterrence: to deter other citizens from breaking the state’s laws, and thereby creating new victims. The wishes of the current victim and her relatives, or of the criminal and his relatives, are largely irrelevant: the punishment aims instead to serve that purpose of the state, as representative of the state’s other citizens. At most, the victim, the criminal, and their relatives and friends may be permitted to address the judge at the time of sentencing, and to express their own desires about sentencing, but the judge is free to ignore those desires.
These separate interests of the state and of the victim are illustrated by a widely publicized criminal case brought by the state of California. The film director Roman Polanski was accused of drugging, raping, and sodomizing a 13-year-old girl (Samantha Geimer) in 1977, pleaded guilty in 1978 to the felony of having sex with a minor, but then fled to Europe before he could be sentenced. Polanski’s victim, now a woman in her 40s, has said that she has forgiven him and doesn’t want him prosecuted or imprisoned. She has filed a statement in court asking for dismissal of the case. While it may at first strike us as paradoxical that the state of California should seek to imprison a criminal against the explicit wishes of the crime’s victim, the reasons for nevertheless doing so were stated forcefully in an editorial in the Los Angeles Times: “The case against Polanski was not brought to satisfy her [the victim’s] desire for justice or her need for closure. It was brought by the state of California on behalf of the people of California. Even if Geimer no longer holds a grudge against Polanski, that doesn’t mean he doesn’t pose a continuing danger to others…. Crimes are committed not just against individuals but against the community…. People accused of serious crimes must be apprehended and tried and, if convicted, must face their sentences.”
A second purpose of punishment, besides deterrence, is retribution: to enable the state to proclaim, “We, the state, are punishing the criminal, so you the victim have no excuse for trying to inflict punishment yourself.” For reasons that are much debated, imprisonment rates are higher, and punishments more severe, in the U.S. than in other Western countries. The U.S. is the only Western country still applying the death penalty. My country often imposes long-term imprisonment or even life imprisonment, which in Germany is reserved for only the most heinous crimes (e.g., postwar Germany’s worst case of serial murder, in which a nurse was convicted of killing 28 patients in a German hospital by injecting them with lethal drug mixtures). While long-term imprisonment in the U.S. has traditionally been reserved for serious crimes, the “three-strikes-and-you’re-out” policy now adopted by my state of California requires judges to impose long terms on criminals convicted of a third felony following two serious felony convictions—even when the third offense is a minor one such as stealing a pizza. Partly as a result, the amount of money that California spends on its prison system is now approaching its expenditures on higher education in its colleges and universities. Californians opposed to this budgetary allocation consider it not only a reversal of human priorities but also a bad economic policy. They argue that California’s current widely advertised economic woes might best be reduced by spending less money on keeping criminals imprisoned for long terms for minor offenses, spending more money on rehabilitating criminals and quickly returning them to productive jobs, and spending more money on educating non-imprisoned Californians to become capable of filling high-paying jobs. It is unclear whether these severe punishments in the U.S. are effective in promoting deterrence.
The remaining purpose behind punishing convicted criminals is to rehabilitate them, so that they can reenter society, resume a normal life, and make an economic contribution to society instead of imposing a heavy economic cost on society as prisoners of our costly prison system. Rehabilitation rather than retribution is the focus of European approaches to criminal punishment. For instance, a German court case forbade the showing of a documentary film accurately depicting a criminal’s role in a notorious crime—because the criminal’s right to demonstrate his rehabilitation, and to have a fair chance of making a healthy return to society after serving his prison term, was considered even more sacred than freedom of the press or the public’s right to know. Does this outlook reflect greater European concern with human dignity, nurturing, and mercy, and lower European concern with Old Testament retribution and with free speech, compared to the U.S.? And how effective, really, is rehabilitation? For instance, its effectiveness seems limited in cases of pedophiles.
Restorative justice
Missing so far from our discussion of purposes of state criminal punishment has been mention of the main purposes of state civil justice (to make the injured party whole) and of non-state dispute resolution (to restore relationships and achieve emotional closure). Both of those purposes, which address needs of a crime’s victim, are not the major goals of our criminal justice system, although there is some provision for them. In addition to furnishing testimony helpful in convicting an accused criminal, the victim or the victim’s relatives may at the time of sentencing be permitted to address the court in the criminal’s presence, and to describe the crime’s emotional impact. As for making the victim whole, some state compensation funds for victims exist, but they are generally small.
For example, the most publicized criminal case in recent American history was the trial of ex–football star O. J. Simpson for the murder of his wife Nicole and her friend Ron Goldman. After a criminal trial lasting eight months, Simpson was found not guilty. But the families of Nicole and Ron then prevailed in a civil suit against Simpson on behalf of Simpson’s and Nicole’s children and of the families, and won (but had little success in collecting) a verdict totaling about $43,000,000. Unfortunately, cases of compensation being obtainable from a civil suit are exceptional, because most criminals are not wealthy and do not have significant assets that could be attached. In traditional societies the victim’s chances of obtaining compensation are increased by the traditional philosophy of collective responsibility: as in Malo’s case, not only the perpetrator but also the perpetrator’s relatives, fellow clansmen, and associates are obliged to pay compensation. American society instead emphasizes individual responsibility over collective responsibility. In New Guinea, if my male cousin is deserted by his wife, I would be angrily demanding from the wife’s clan the refund of the portion of her bride-price that I paid to acquire her for my cousin; as an American, I am glad not to share responsibility for the success of my cousins’ marriages.
A promising approach towards bringing emotional closure in some cases, to both a criminal not condemned to death and to the surviving victim or the dead victim’s closest relative, is a program called restorative justice. It views a crime as an offense against the victim or community as well as against the state; it brings the criminal and victim together to talk directly (provided that both are willing to do so), rather than keeping them apart and having lawyers speak for them; and it encourages criminals to accept responsibility, and victims to say how they have been affected, rather than discouraging those expressions or providing little opportunity for them. The criminal and the victim (or the victim’s relative) meet in the presence of a trained mediator, who lays down ground rules such as no interrupting and no abusive language. The victim and the criminal sit face-to-face, look each other in the eye, and take turns relating to each other their life stories, their feelings, their motives, and the crime’s effect on their subsequent lives. The criminal gets a flesh-and-blood view of the harm that he has caused; the victim sees the criminal as a human with a history and motives, rather than as an incomprehensible monster; and the criminal may come to connect the dots in his own history, and to understand what set him on a criminal path.