I thought this was a very thoughtful and relevant piece - thank you. I agree with huge portions of it.
Regarding detention pending trial (they call it remand in England & Wales): I was very impressed by the fictional story told in a mini-series a few years back with John Turturro, called “The Night Of”. The story concerns a man who has no recollection of whether he killed a woman or not - with that fact we as audience are deprived of prejudgment on the rest of the story, over the course of which the accused is remanded to Riker’s Island Prison in New York. There, his prime task is to still be alive when his trial date comes. Not only his demeanour, but his appearance slowly but surely take on that of a hardened convict. He shaves his head, smokes meth, befriends a protector, works the commissary system, learns not to wear orange for court appearances, all after his bed has gone up in flames. In summing up at the trial, Turturro gives a stirring and very well constructed piece of monologue, part of which addresses this fact: that the accused, having been held on remand for so many months, has had to change, to assimilate to Riker’s Island and its population, in order to survive the prison system, and now he stands before the jury to be judged - looking every bit the hardened criminal that the prosecution would have them believe he is, and innocence of which it is now his formidable task to persuade them.
I expressly mention the scriptwriter’s technique of the accused’s lack of recollection. We believe him, even if, at least initially, like his counsel, we can barely credit it. Ethically, counsel may not plead the innocence of an accused whom they know is guilty as charged. But they may validly challenge the state’s case as brought in support of the charges. They may question the evidence and they can profess theoretical innocence, provided they have not been informed of the accused’s position on the matter. The English case of Lucy Letby, a nurse convicted of the murders of a series of newborn babies, may yet prove to be food for thought: the most incriminating evidence against her was that she was on duty when each of the babies died. As were many other people, on an understaffed postnatal ward. However, she is in for life, whole life. The Texas case of Robert Roberson III is likewise interesting. He has been granted remission of 30 days as from 17 October - on which day he had been scheduled for execution. Letby supposedly incriminated herself by writing a frantic note to herself asking why she had done “it”, and recriminating against herself for her “evil" acts. I’m not sure that her acts, as impelling these notes, were acts of murder in the first degree, but I’m not directly involved. Roberson has served 21 years in prison, not for a crime he didn’t do, but for a crime that was never done, at least so all the current comments would seem to indicate. Yet his lawyer acquiesced in the charge of murder at first instance, and effectively pled only mitigation. He never questioned the fact of his client’s guilt, and that set the die for the next two decades.
If only we could handle the accused truly on the basis of “innocent until proved guilty” prior to incarceration, and could absolve the guilty of their debts, once their day of release is come. Give them their voting rights, embed them in the society within which we now want them to reintegrate. The problem with the correctional system is that those who benefit most from it, at least theoretically (being the general public), on the whole don’t give a hoot how it operates, as long as it operates; and those who operate it on our behalf really don’t know what it is they want out of it, because, essentially, nor do we.
Thank you for your thoughtful reply. Agreed on all your points. And while I don't think restorative justice is a panacea, I do think that removing victims from the process is part of what makes it so hard for people to allow for rehabilitation. It is not meaningful for someone to plead forgiveness from a parole board or the general public in the same way as it his to repair the harm done to the victim. Some harms can never truly be repaired, but it is a poor system which starts from the assumption that there's no need to try.
Strangely enough, “forgiveness” is an aspect I touch on in an article I put up on Saturday (https://endlesschain.substack.com/p/on-conscientious-objection). Although I realise that it comes over as somewhat brutal, forgiveness is a blessing that is demanded of him who has been harmed. It is a means of settlement. It springs from the creditor’s conviction that: to exact his debt is wrong. For that reason, the creditor wants to know whether exacting the debt truly is wrong or not, and he invariably tests that against an expression of regret on the part of the debtor. We treat forgiveness as were it a commodity, to be traded.
But a court of law does not deal in forgiveness. Forgiving the convicted criminal of his debt is not, qualitate qua, within its remit. It may issue punishments that are tantamount to it, like warnings, suspended sentences, and the reduced sentences in exchange for cooperation, but forgiveness as such is not in.
Forgiveness is a burden that rests on the wronged and that only he can discharge. To burden that responsibility with an evaluation of whether the forgiveness is deserved or not makes it transactional, aleatory, a sort of gift. And, just as when we give presents, we first evaluate whether the recipient is deserving of it, whereas the essence of giving is not the benefit to the recipient, but to the giver (https://endlesschain.substack.com/p/eyes-of-needles).
The sociology puts it thus: the criminal offends against … not really against the victim. The victim’s harm is the test of whether the criminal has transgressed the law against society. It is therefore society’s debt, not the victim’s. The victim should be compensated his loss, be it non-pecuniary or pecuniary, on the same basis as under the law of negligence. If the culprit lacks the means, society should step in in terms of its general philosophy of justice, the same philosophy that deems the criminal should go to prison: there must be a compensation fund, a sort of social security insurance against being harmed by penniless criminals. Besides its obvious practical application, the fund would demonstrate that the society setting it up has a deep-seated sense of social justice. As your own referenced article states, the crime of wage theft is a matter treated as a civil wrong, whereas theft from a shop counts as a criminal matter. Well, victim compensation is another area where the criminal and civil domains cross.
The victim’s harm goes to show the severity or otherwise of the act causing that harm: if the principle is that individuals must be held responsible for their actions, then we need to know what the results of their actions are, and that will be a test of the harm done (and is assumed to be a test of the severity of the act).
Mr Crooks, who injured Mr Donald Trump by shooting at his ear, will never stand trial for his crime. Mr Trump survived the attack, but for a half inch. The same shot, shot with the same intention, in the same circumstances, but half an inch to the side, would have killed Mr Trump. The penalty meted out to Mr Crooks would have taken account of whether his shot killed or did not kill Mr Trump. Mr Trump’s compensation, if any, would be either based on his ear injury or, in the hands of his beneficiaries, based on his death. This is results-based justice: it looks only at the result of the crime to determine the intention that underlay it. Is that a sound basis for a system of criminal justice? Because whether the intention is viewed lightly or severely is almost a matter of luck and, for the same money, one could view the results in the hands of the victim as “bad luck”. “Bad luck” is a judgment that gets handed out in many other areas of society, so we’re not that far off that kind of approach in terms of criminal justice (I know a man in Germany who was raped when he was 18, and the prosecution was dropped “for lack of a public interest in the matter”).
Victims do not administer prisons. They do not operate criminal investigation bureaux. They do not sit on court benches. One reason they don’t do these things (although those who do do these things may one day be victims) is to maintain fairness. The rancour that led to the criminal act should not be perpetuated in its prosecution as a crime. The criminal justice system does not serve victims as such. It does not render justice to the victim, it serves and renders justice to the society that has been wronged by the criminal act, against which society has enacted laws, and for the pursuit of which it has created institutions, to repress the conduct complained of. The debt, if thus one wishes to express it, is owed in this case not to the victim, but to society. It is our society that has been harmed by the act of the criminal. It is that society that will punish it. And, when the punishment is completed, so I would like to think, it is that society that will welcome the miscreant back into its fold and issue the criminal with his quietus: paid, in full and final settlement.
We hobble on through the 21st century with a criminal justice system (wherever we might be) born of Middle-Age superstition and spitefulness, trying somehow to reconcile a host of competing arguments for and against types of punishment, bonds, police powers, sentencing, judicial independence and victims’ rights, among many others. I’m sure some are doing it, but why not look at other countries to see how it is, for instance, that Ecuador virtually wiped out its gang problems (and what problems it has encountered instead), at how the Netherlands has reduced its prison population by 40 pc, to the point where it is closing institutions, and at whether the death sentence even serves any purpose, given that its execution usually takes place many years after the facts have been long forgotten by all but a handful, a quiet and largely irrelevant footnote to a case file in which the conviction may not even be that secure.
Victims should be heard, yes, and they should have a route to vent their anger via the press. But it should not be one that is cosseted by the judicial system and it should not influence juries. What prosecutors do in favouring victims’ stories is feather their own nests, promote their own career advancement, sometimes with well meant intentions, but sometimes not: it is mission creep. Victim assistance should be a role of social services, and not the courts administration. The irony is that, when victims themselves plead for leniency, as was the case with Sadik Baxter (https://endlesschain.substack.com/p/twelve-men-good-and-true), they often go ignored. That, at the very least, should indicate that their concerns may be fawned over, but they, too, are often just pawns in a big chess game, and criminal justice has to stop being a game in which everyone wants a piece of the pie. It is not a pie. It is a pancake. A playing field that must be, and be seen to be, as flat as one of those.
This describes the defense of a high school shooter in the US and how his penalty was reduced to life in prison rather than the death sentence based on overwhelming evidence of cognitive issues and missed opportunities to provide support in his life. Many family members of victims will never forgive him, but the article does a good job exploring the complexities of forgiveness and its role in our justice system.
Your point about how victims are treated is a major part of Doing Life. I also understand the well-founded worry that victims can bias justice toward even more retribution.
Maybe for now it is better to consider a crime as a debt to society that has to be paid, but I think if we maintain that thinking we need to create a much more supportive society which does not push people into homelessness for profit or send them deep into debt for illness (U.S. examples). At that point someone's crime could be considered as canceling out the debt society has to them for how they have been treated.
I thought this was a very thoughtful and relevant piece - thank you. I agree with huge portions of it.
Regarding detention pending trial (they call it remand in England & Wales): I was very impressed by the fictional story told in a mini-series a few years back with John Turturro, called “The Night Of”. The story concerns a man who has no recollection of whether he killed a woman or not - with that fact we as audience are deprived of prejudgment on the rest of the story, over the course of which the accused is remanded to Riker’s Island Prison in New York. There, his prime task is to still be alive when his trial date comes. Not only his demeanour, but his appearance slowly but surely take on that of a hardened convict. He shaves his head, smokes meth, befriends a protector, works the commissary system, learns not to wear orange for court appearances, all after his bed has gone up in flames. In summing up at the trial, Turturro gives a stirring and very well constructed piece of monologue, part of which addresses this fact: that the accused, having been held on remand for so many months, has had to change, to assimilate to Riker’s Island and its population, in order to survive the prison system, and now he stands before the jury to be judged - looking every bit the hardened criminal that the prosecution would have them believe he is, and innocence of which it is now his formidable task to persuade them.
I expressly mention the scriptwriter’s technique of the accused’s lack of recollection. We believe him, even if, at least initially, like his counsel, we can barely credit it. Ethically, counsel may not plead the innocence of an accused whom they know is guilty as charged. But they may validly challenge the state’s case as brought in support of the charges. They may question the evidence and they can profess theoretical innocence, provided they have not been informed of the accused’s position on the matter. The English case of Lucy Letby, a nurse convicted of the murders of a series of newborn babies, may yet prove to be food for thought: the most incriminating evidence against her was that she was on duty when each of the babies died. As were many other people, on an understaffed postnatal ward. However, she is in for life, whole life. The Texas case of Robert Roberson III is likewise interesting. He has been granted remission of 30 days as from 17 October - on which day he had been scheduled for execution. Letby supposedly incriminated herself by writing a frantic note to herself asking why she had done “it”, and recriminating against herself for her “evil" acts. I’m not sure that her acts, as impelling these notes, were acts of murder in the first degree, but I’m not directly involved. Roberson has served 21 years in prison, not for a crime he didn’t do, but for a crime that was never done, at least so all the current comments would seem to indicate. Yet his lawyer acquiesced in the charge of murder at first instance, and effectively pled only mitigation. He never questioned the fact of his client’s guilt, and that set the die for the next two decades.
If only we could handle the accused truly on the basis of “innocent until proved guilty” prior to incarceration, and could absolve the guilty of their debts, once their day of release is come. Give them their voting rights, embed them in the society within which we now want them to reintegrate. The problem with the correctional system is that those who benefit most from it, at least theoretically (being the general public), on the whole don’t give a hoot how it operates, as long as it operates; and those who operate it on our behalf really don’t know what it is they want out of it, because, essentially, nor do we.
Thank you for your thoughtful reply. Agreed on all your points. And while I don't think restorative justice is a panacea, I do think that removing victims from the process is part of what makes it so hard for people to allow for rehabilitation. It is not meaningful for someone to plead forgiveness from a parole board or the general public in the same way as it his to repair the harm done to the victim. Some harms can never truly be repaired, but it is a poor system which starts from the assumption that there's no need to try.
Strangely enough, “forgiveness” is an aspect I touch on in an article I put up on Saturday (https://endlesschain.substack.com/p/on-conscientious-objection). Although I realise that it comes over as somewhat brutal, forgiveness is a blessing that is demanded of him who has been harmed. It is a means of settlement. It springs from the creditor’s conviction that: to exact his debt is wrong. For that reason, the creditor wants to know whether exacting the debt truly is wrong or not, and he invariably tests that against an expression of regret on the part of the debtor. We treat forgiveness as were it a commodity, to be traded.
But a court of law does not deal in forgiveness. Forgiving the convicted criminal of his debt is not, qualitate qua, within its remit. It may issue punishments that are tantamount to it, like warnings, suspended sentences, and the reduced sentences in exchange for cooperation, but forgiveness as such is not in.
Forgiveness is a burden that rests on the wronged and that only he can discharge. To burden that responsibility with an evaluation of whether the forgiveness is deserved or not makes it transactional, aleatory, a sort of gift. And, just as when we give presents, we first evaluate whether the recipient is deserving of it, whereas the essence of giving is not the benefit to the recipient, but to the giver (https://endlesschain.substack.com/p/eyes-of-needles).
The sociology puts it thus: the criminal offends against … not really against the victim. The victim’s harm is the test of whether the criminal has transgressed the law against society. It is therefore society’s debt, not the victim’s. The victim should be compensated his loss, be it non-pecuniary or pecuniary, on the same basis as under the law of negligence. If the culprit lacks the means, society should step in in terms of its general philosophy of justice, the same philosophy that deems the criminal should go to prison: there must be a compensation fund, a sort of social security insurance against being harmed by penniless criminals. Besides its obvious practical application, the fund would demonstrate that the society setting it up has a deep-seated sense of social justice. As your own referenced article states, the crime of wage theft is a matter treated as a civil wrong, whereas theft from a shop counts as a criminal matter. Well, victim compensation is another area where the criminal and civil domains cross.
The victim’s harm goes to show the severity or otherwise of the act causing that harm: if the principle is that individuals must be held responsible for their actions, then we need to know what the results of their actions are, and that will be a test of the harm done (and is assumed to be a test of the severity of the act).
Mr Crooks, who injured Mr Donald Trump by shooting at his ear, will never stand trial for his crime. Mr Trump survived the attack, but for a half inch. The same shot, shot with the same intention, in the same circumstances, but half an inch to the side, would have killed Mr Trump. The penalty meted out to Mr Crooks would have taken account of whether his shot killed or did not kill Mr Trump. Mr Trump’s compensation, if any, would be either based on his ear injury or, in the hands of his beneficiaries, based on his death. This is results-based justice: it looks only at the result of the crime to determine the intention that underlay it. Is that a sound basis for a system of criminal justice? Because whether the intention is viewed lightly or severely is almost a matter of luck and, for the same money, one could view the results in the hands of the victim as “bad luck”. “Bad luck” is a judgment that gets handed out in many other areas of society, so we’re not that far off that kind of approach in terms of criminal justice (I know a man in Germany who was raped when he was 18, and the prosecution was dropped “for lack of a public interest in the matter”).
Victims do not administer prisons. They do not operate criminal investigation bureaux. They do not sit on court benches. One reason they don’t do these things (although those who do do these things may one day be victims) is to maintain fairness. The rancour that led to the criminal act should not be perpetuated in its prosecution as a crime. The criminal justice system does not serve victims as such. It does not render justice to the victim, it serves and renders justice to the society that has been wronged by the criminal act, against which society has enacted laws, and for the pursuit of which it has created institutions, to repress the conduct complained of. The debt, if thus one wishes to express it, is owed in this case not to the victim, but to society. It is our society that has been harmed by the act of the criminal. It is that society that will punish it. And, when the punishment is completed, so I would like to think, it is that society that will welcome the miscreant back into its fold and issue the criminal with his quietus: paid, in full and final settlement.
We hobble on through the 21st century with a criminal justice system (wherever we might be) born of Middle-Age superstition and spitefulness, trying somehow to reconcile a host of competing arguments for and against types of punishment, bonds, police powers, sentencing, judicial independence and victims’ rights, among many others. I’m sure some are doing it, but why not look at other countries to see how it is, for instance, that Ecuador virtually wiped out its gang problems (and what problems it has encountered instead), at how the Netherlands has reduced its prison population by 40 pc, to the point where it is closing institutions, and at whether the death sentence even serves any purpose, given that its execution usually takes place many years after the facts have been long forgotten by all but a handful, a quiet and largely irrelevant footnote to a case file in which the conviction may not even be that secure.
Victims should be heard, yes, and they should have a route to vent their anger via the press. But it should not be one that is cosseted by the judicial system and it should not influence juries. What prosecutors do in favouring victims’ stories is feather their own nests, promote their own career advancement, sometimes with well meant intentions, but sometimes not: it is mission creep. Victim assistance should be a role of social services, and not the courts administration. The irony is that, when victims themselves plead for leniency, as was the case with Sadik Baxter (https://endlesschain.substack.com/p/twelve-men-good-and-true), they often go ignored. That, at the very least, should indicate that their concerns may be fawned over, but they, too, are often just pawns in a big chess game, and criminal justice has to stop being a game in which everyone wants a piece of the pie. It is not a pie. It is a pancake. A playing field that must be, and be seen to be, as flat as one of those.
I had to go back and search for this article and I will caveat that you should make sure you are in a good mental space I'd you choose to read it because it is very heavy. https://www.themarshallproject.org/2024/09/17/school-shooting-death-penalty-parkland-nikolas-cruz
This describes the defense of a high school shooter in the US and how his penalty was reduced to life in prison rather than the death sentence based on overwhelming evidence of cognitive issues and missed opportunities to provide support in his life. Many family members of victims will never forgive him, but the article does a good job exploring the complexities of forgiveness and its role in our justice system.
Your point about how victims are treated is a major part of Doing Life. I also understand the well-founded worry that victims can bias justice toward even more retribution.
Maybe for now it is better to consider a crime as a debt to society that has to be paid, but I think if we maintain that thinking we need to create a much more supportive society which does not push people into homelessness for profit or send them deep into debt for illness (U.S. examples). At that point someone's crime could be considered as canceling out the debt society has to them for how they have been treated.
Thank you, Sean. Our conversation prompted this, in which a small credit is given to you: https://endlesschain.substack.com/p/criminal-justice-must-be-a-pancake. I shall revert to you on your above two comments in due course. Meanwhile, you may wish to read this from my archive: https://endlesschain.substack.com/p/twelve-men-good-and-true.
Thank you. I've got a flight coming up soon, so I'll be sure to read these then.