Does Judicial Punishment Mainly Serve A Revenge Motive?

Here’s a few thoughts stemming from comments on my recent post regarding the Norwegian terror shootings. The discussion got a little confused as people thought I wanted to discuss psychiatry, when I was really only commenting on the judicial concept of criminal responsibility versus insanity.

Why do modern states have systems of judicial punishment? If you look closer at this issue you’ll find that there are several independent motivations that sometimes operate against each other.

1. Violence monopoly and collective revenge. Having been wronged, many people want revenge on the perpetrator. State societies reserve a monopoly on legal violence, so to keep a man from avenging his murdered sister, the state will step in and take care of the revenge. This saves society from the vendetta, the endless cycle of revenge and counter-revenge in pre-state societies that is generally much more harmful to the collective than the original crime. Also, judicial revenge means that people whom nobody would avenge because they are poor or lack family are also avenged.

2. Deterrent. If crime is known to lead to punishment, then hopefully this will lead to less crime.

3. Containment: keeping criminals off the streets. A criminal in jail is much less likely to commit crime against people outside while he is locked up, and it could be argued that crime committed against other convicted criminals a) is a lesser social ill than other crime, b) contributes to the deterrent effect.

4. Reform. Maybe there are methods (short of murder) to force a a criminal to change his ways.

Now, I don’t care about revenge, and I wish that this irrational motive didn’t figure in our judicial systems at all. Once a crime is committed, it can’t be undone by hurting the perpetrator. All society can do constructively is help the victim, preferably at the perpetrator’s expense. But thinking about this I realised that as long as people are irrationally driven to avenge wrongs, we have to deal with this aspect or they will start taking matters into their own hands. This would lead to exactly the sort of violent crime the judicial system is designed to counteract. People have a strong Old Testament feeling that if I cause someone harm, then I should by rights also suffer harm.

Prisons are designed to combine revenge, deterrent, containment and reform. In most parts of the world where prisons are really nasty, they do well at the revenge and containment bits. But they fail resoundingly at deterrent and reform. Inmates come out of prison equally or more likely to commit crime as before. In Western countries, prisons are so humane that there isn’t actually much revenge involved either – prisoners are mainly just very bored and miss their loved ones. Even in humane prisons, having convicted criminals as your entire social circle is not a good way to learn how to lead a peaceful, honest and productive life.

It interested me to read, recently, that most Swedish prisoners prefer jail to an electronic surveillance manacle and a term served at home. The reason is that with the manacle, apparently they feel isolated from their peers – which is of course good both regarding revenge and reform. But a manacle sentence should always be combined with some kind of mandatory productive work.

The judicial system’s intense interest in whether a perp is sane enough to be held responsible for their crime only makes sense from a revenge perspective. Of course it would be unfair to avenge ourselves on someone who doesn’t understand what they did. But if you drop the revenge bit, just as a thought experiment, you’ll find that the determination of free-will responsibility becomes irrelevant. Our need of deterrent, containment and reform is the same regardless of the mental state of the perp. The main issue simply becomes “How do we keep this guy from repeat crime, and guys like him from their first crime?” And this lands us in a social engineering perspective.

If people weren’t so emotionally invested in revenge (and, conversely, in the humane treatment of prisoners), they would demand that public funding for the judicial system be invested only in well-studied, evidence-based, efficacious methods of deterrent, containment and reform. Any current measure that fails to further all these three goals at once would have to be dropped. I don’t know how far criminology has come on these points. But maybe it would turn out that there is no practical, evidence-based reason to keep a lot of current prison inmates locked up. Maybe we pay all that money only for revenge’s sake.