If the accused is found guilty of a crime, the state then proceeds to the second stage of imposing a punishment, such as a prison sentence. The punishment’s aims include serving three purposes, on which the relative emphasis differs between different national systems of justice: deterrence, retribution, and rehabilitation. These three purposes differ from the main purpose of non-state dispute resolution, namely, to compensate the victim. Even if Daniel Driver had been sentenced to prison, that wouldn’t have compensated Ellie Nesler and her son for the trauma of the son’s sexual abuse.
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 su
bsequent 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.
For instance, one such encounter in California brought together a 41-year-old widow, Patty O’Reilly, and her sister Mary, with a 49-year-old prisoner, Mike Albertson. Mike was serving a 14-year prison term for killing Patty’s husband Danny two and a half years previously, by striking Danny from behind with Mike’s truck while Danny was bicycling. Over the course of four hours, Patty told Mike her initial feelings of hatred towards him, the details of her husband’s last words to her, how she and her two young daughters were brought the news of Danny’s death by a sheriff’s deputy, and how she was still reminded every day of Danny by such seeming trivia as hearing a song on the radio or seeing a bicyclist. Mike told Patty his life story of sexual abuse by his father, drug addiction, a broken back, running out of painkiller pills on the night of the killing, phoning and being rejected by his girlfriend, setting off drunk in his truck to check himself in at a hospital, seeing a bicyclist—and confessing that he may have hit Danny on purpose, in rage against his father, who had repeatedly raped him, and against his mother, who hadn’t stopped it. At the end of the four hours, Patty summed up the process by saying, “Forgiving is hard, but not forgiving is harder.” Over the next week she felt unburdened, empowered, and strong from having watched across a table her husband’s killer see the devastation that he had caused. Thereafter, Mike felt alternately drained, depressed, and uplifted by Patty’s willingness to meet and forgive him. Mike kept on his bedside table a card that Patty had brought him from her daughter Siobhan: “Dear Mr. Albertson, Today is the 16th of August and I will be 10 years old on September first. I just want to make sure you know that I forgive you. I do still miss my Dad, I think that’s a life-long thing. I hope you’re feeling OK. Bye bye, Siobhan.”
Such restorative justice programs have been operating for up to 20 years in Australia, Canada, New Zealand, the United Kingdom, and various American states. There is still much experimentation going on—e.g., as to whether the meeting should involve just the criminal and the victim or should also involve relatives, friends, and teachers; whether the meeting takes place at an early stage (soon after arrest) or at a late stage (in prison, as in the case of Patty and Mike); and whether there is an effort at restitution by the criminal to the victim. There are many anecdotal accounts of outcomes, and some control tests that randomly assign criminals to one of several alternative programs or else to a control group with no such programs, and that then evaluate outcomes statistically. Favorable results reported in cumulative statistical analyses of cases by some programs include lower rates of further offenses being committed by the criminal, less severe offenses if any are committed, a decrease in the victim’s feelings of anger and fear, and an increase in the victim’s feelings of safety and closure. Not surprisingly, better results are obtained in cases in which the criminal is willing to meet the victim, actively participates in the meeting, and realizes the harm that he has done, than in cases in which the criminal unwillingly participates in a court-mandated meeting.
Naturally, restorative justice is not a panacea for all criminals and victims. It requires a trained facilitator. Some criminals do not feel remorse, and some victims would feel traumatized rather than helped by re-living the crime in the criminal’s presence. Restorative justice is at best an adjunct to, not a substitute for, our criminal justice system. But it holds promise.
Advantages and their price
What conclusions can we draw from these comparisons of dispute resolution in states and in small-scale societies? On the one hand, in this area of dispute resolution as in the other areas to be discussed in succeeding chapters of this book, we should not naively idealize small-scale societies, view them as uniformly admirable, overstate their advantages, and castigate state government as at best a necessary evil. On the other hand, many small-scale societies do possess some features that we could profitably incorporate into our state societies.
At the outset, let me prevent misunderstanding and reiterate that dispute resolution even within modern industrial states already contains areas that utilize tribal-like dispute resolution mechanisms. When we have a dispute with a merchant, most of us don’t immediately hire a lawyer or sue; we begin by discussing and negotiating with the merchant, perhaps even asking a friend to contact the merchant on our behalf if we feel too angry or helpless ourselves. I already mentioned the many professions and groups within industrial societies that have their own routine procedures for dispute resolution. In rural areas and other small enclaves where everyone knows everyone else and expects relationships to be life-long, motivation and pressure to settle disputes informally are strong. Even when we do resort to lawyers, some disputants expecting an on-going relationship—such as some divorcing parents of children, or business partners or counterparts—end up using the lawyers to reestablish a non-hostile relationship. Many states besides Papua New Guinea are sufficiently new or weak that much of the society continues to function in its traditional ways.
With that as background, let’s now recognize three inherent advantages of state justice when it functions effectively. First and foremost, a fundamental problem of virtually all small-scale societies is that, because they lack a central political authority exerting a monopoly of retaliatory force, they are unable to prevent recalcitrant members from injuring other members, and also unable to prevent aggrieved members from taking matters into their own hands and seeking to achieve their goals by violence. But violence invites counter-violence. As we shall see in the next two chapters, most small-scale societies thereby become trapped in cycles of violence and warfare. State governments and strong chiefdoms render a huge service by breaking those cycles and asserting a monopoly of force. Of course, I don’t claim that any state is completely successful at curbing violence, and I acknowledge that states themselves to varying degrees employ violence against their citizens. Instead, I note that, the more effective the control exercised by the state, the more limited the non-state violence.
That’s an inherent advantage of state government, and a major reason why large societies in which strangers regularly encounter each other have tended to evolve strong chiefs and then state government. Whenever we find ourselves inclined to admire dispute resolution in small-scale societies, we have to remind ourselves that it consists of two prongs, of which one prong is admirable peaceful negotiation and the other prong is regrettable violence and war. State dispute resolution also has its own two prongs of which one is peaceful negotiation, but the state’s confrontational second prong is merely a trial. Even the most horrible trial is preferable to a civil war or a cycle of revenge murders. That fact may make members of small-scale societies more willing than members of state societies to settle their private disputes by negotiation, and to focus those negotiations on emotional balance and the restoration of relationships rather than on vindicating rights.
A second advantage or potential advantage of state-administered justice over do-it-yourself traditional justice involves power relationships. A disputant in a small-scale society needs to have allies if his bargaining position is to be credible, and if he really wants to collect those cattle that the Nuer leopard-skin chief has proposed as appropriate compensation. This reminds me of an influential article about Western state justice, entitled “Bargaining in the Shadow of the Law”—meaning that mediation in states takes place with both parties aware that, if mediation fails, the dispute will be settled in court by the application of laws. By the same token, compensation negotiations in small-scale societies take place “in the shadow of war”—meaning that both parties know that, if the negotiation is unsuccessful, the alternative is war or violence. That knowledge creates a non-level playing field in small-scale societies and gives a strong bargaining advantag
e to the party expected to be able to marshal more allies in the eventuality of war.
Theoretically, state justice aims to create a level playing field, to offer equal justice to all, and to prevent a powerful or rich party from abusing her power so as to obtain an unfair settlement. Of course, I and every reader will immediately protest: “Theoretically, but…!” In reality, a rich litigant enjoys an advantage in civil and criminal cases. She can afford to hire expensive lawyers and expert witnesses. She can pressure a less affluent adversary into settling, by filing extensive discovery motions in order to drive up the adversary’s legal costs, and by filing suits that have little merit but that will be costly for the other party to contest. Some state justice systems are corrupt and favor wealthy or politically well-connected parties.
Yes, it’s unfortunately true that the more powerful disputant enjoys an unfair advantage in state justice systems, as in small-scale societies. But states at least provide some protection to weak parties, whereas small-scale societies provide little or none. In well-governed states a weak victim can still report a crime to the police and will often or usually be heard; a poor person starting a business can seek the state’s help in enforcing contracts; a poor defendant in a criminal case is assigned a court-paid lawyer; and a poor plaintiff with a strong case may be able to find a private lawyer willing to accept the case on contingency (i.e., a lawyer willing to be paid a fraction of the award if the case is successful).