Commentary Magazine


Punishing Criminals, by Ernest van den Haag

Punishing Criminals: Concerning a Very Old and Painful Question.
by Ernest Van Den Haag.
Basic Books. 283 pp. $11.50.

While it is generally agreed that the continuing rapid increase in crime rates in recent years is an extremely disturbing phenomenon, there is wide disagreement about the causes of this trend and the ways in which it might be stemmed. The approach which has been followed by most liberal thinkers holds that while considerable improvement can be made in the mechanics of the criminal-justice system, any attack on crime which concentrates primarily on punishing offenders cannot ultimately be successful because the fundamental causes of crime are endemic to the structure of society, in particular to the substantial degree of inequality which still characterizes American society; according to this line of reasoning, any meaningful program to reduce crime must begin with an attack on inequality. This view is not reflected in public opinion, however, which in the main clings to the more traditional belief that the best way to cut down crime is to apprehend and punish more criminals than we currently do. This prescription is usually made on intuitive and commonsensical grounds, but Ernest van den Haag has argued the case in a more analytically rigorous fashion.

The thrust of van den Haag’s book is that crime will always be with us, and that the judicious use of punishment is the only way to keep it within manageable bounds; his argument is that punishment is not only necessary but morally justified, and that the prevalence of doubt regarding society’s absolute right to punish those who transgress its laws is one of the main factors contributing to the soaring rate of crime in modern American society.

Van den Haag begins by justifying the concept of punishment, which, he says, is often dismissed mistakenly as simple revenge. In fact, legal punishment does not merely sublimate the individual urge for retribution (which would otherwise emerge in extra-legal and socially disruptive forms) but also serves as an essential element of the social compact. Since internalized restraints can never be completely effective, there is a need for external sanctions, which in turn can only function effectively if they are carried out when the laws are disobeyed. Today, van den Haag argues in one of his major theses, the extremely low probability of a criminal’s suffering punishment for any particular criminal act is one of the main factors behind the rapidly increasing crime rate. If this unwillingness or inability to punish crime persists, the currently law-abiding will also eventually cease to respect the law and a general social breakdown will ensue.

So far, the argument has been utilitarian: both the threat of punishment and its actual imposition are necessary for the sake of preserving order. Van den Haag continues with an exploration of some of the problems inherent in the use of punishment. In order for punishment to be acceptable, it must be compatible with the fundamental principle of justice, but justice itself is not the only value which society seeks to uphold.

There are conflicts between the needs of justice and those of order: justice means that crimes of equal magnitude must be punished equally, but order demands more severe punishment for actions which have a greater negative impact on society at large, regardless of the intent or nature of the act itself. (Thus a sentry who sleeps on duty through no fault of his own may be subject to capital punishment because of the possible repercussions of his dereliction of duty.) There are also conflicts between justice and charity: some people are under much greater pressure than others to commit crimes, making it unduly harsh to punish the former as severely as the latter. Yet, as van den Haag points out, it is persons in the former category who are the more likely to commit crime, and with whom the law must be most concerned.

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The first part of the book concludes with a review of the functions of punishment, which include incapacitation, the rendering of a criminal incapable of carrying out criminal activities for some period; reform, which seeks to change the offender’s future behavior (either by intimidation or by rehabilitation); and deterrence, whereby the punishment of offenders prevents others from emulating their criminal behavior. The second part of the book then surveys what is known about the causes of crime.

On the individual level, a person may be driven to a criminal act by internal or external causes. In the former case, his character is predisposed toward anti-social behavior, and a slight provocation may serve to tip the balance; in the latter, circumstances may be so pressing that only a saint could refrain from committing crime. Clearly, these are extreme cases, and every individual act is subject to a host of contingent circumstances.

One frequently mentioned cause of crime is poverty, yet, as van den Haag points out, this explanation will not do, since as poverty has decreased absolutely in this country, the crime rate has actually increased. (The extremely elastic concept of relative deprivation has been pressed into service to explain this anomaly.) Another opinion holds that crime is a manifestation of disease. This position, argued by Ramsey Clark among others, is dismissed by van den Haag as untenable, given the continuous spectrum of human behavior ranging from the completely law-abiding to the pathologically anti-social, with most people in the middle and no observable difference (other than the behavior to be explained) between the marginal offender and his non-criminal counterpart. In fact, van den Haag states, the “criminals-are-sick” argument actually serves as a defense mechanism for its proponents. By distinguishing sharply between normal, law-abiding people and criminals, it removes moral opprobrium from the latter while at the same time allowing restrictions on their freedom as clinical treatment for their own good.

The final third of the book consists of an analysis of different forms of punishment, and suggests some new or neglected forms that might be of value in present-day American society. The first point made is that the primary purposes of punishment should be retribution and deterrence: if the offender is to be rehabilitated it has to be of his own will rather than by coercion. The. fear or experience of punishment is logically distinct from rehabilitative treatment which may accompany or follow it. A rational amoral criminal will have no reason to seek rehabilitation if his criminal activity does not result in punishment. Further, the severity of punishment must match the gravity of the offense: if it is too harsh it will not be carried out, and if too lenient, it will not deter. With these general considerations in mind van den Haag describes a variety of types of punishment.

The way in which changing mores affect our attitudes toward punishment is brought out strikingly in a chapter on corporal punishment, the decline in the acceptability of which is ascribed by van den Haag to its identification with sexual abuse in the last two centuries, when a growing trend of depersonalization has accompanied an increasing emphasis on equality. His ensuing discussion of capital punishment is less psychologically oriented and more in the spirit of dispassionate analysis which characterizes the book as a whole; he finds that the arguments most often used by abolitionists regarding the morality of capital punishment are flawed, while the empirical evidence, though inconclusive, tends to point to a deterrent effect.

The final subject investigated is imprisonment. In general, van den Haag maintains, the use of a much expanded arsenal of fines and appropriate monetary punishments is a desirable alternative to incapacitation when the offender does not present a physical danger or major moral affront to society as a whole. For conventional prisoners, van den Haag suggests that the structure of prison life be modeled on real life, with suitable incentives for socially desirable behavior and market wages (with deductions for room, board, and the literal paying off of debts to society and victims) for productive work. He then devotes considerable attention to one class of offenders which presents a special problem: those who have served the time appropriate to their particular offense, but remain so dangerous (i.e., potentially violent) that they should not be loose in society. In a truly radical proposal, van den Haag advocates a policy of “post-punishment incapacitation” for such cases. This preventive incapacitation need not, and should not, involve the stringencies of a confinement whose purpose is punitive.

In an epilogue van den Haag justifies the book as an attempt to come to grips with man as he is, with full responsibility for his actions. Since the evolution of society to date has not made man any closer to the angels, we are left with the need to suggest ways in which law-breaking may be made less attractive. In Punishing Criminals he attacks this subject in an intellectually serious spirit, and even his most provocative and debatable suggestions are argued persuasively. Van den Haag refers repeatedly to the connection between the growing crime rate and the ever more prevalent disbelief in individual responsibility. One might wish he had discussed more fully the connection between that disbelief and the phenomenon of increasing prosperity brought about with decreasing effort. Is it because we have recently entered a period of economic struggle that we now see traditional values reasserting themselves?

One of the main domestic issues of the 1968 presidential election was the Warren Court’s extension of the rights of accused and convicted criminals, and the remaking of the court majority under President Nixon resulted in a more restrictive attitude toward further expansion of these rights. Public approval of this attitude does not appear to have been affected by the fate of Nixon’s general reputation, and indeed is consistent with the current espousal of traditional styles of morality, as reflected particularly in the political arena this year. We can, therefore, probably expect a further evolution of public policies in the direction advocated by van den Haag; whether morality itself will stay in fashion long enough for any results to become apparent is an open question.

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