Trangression and Correction

November 97 Transgression and Correction

My Thesaurus gave me this title as a welcome alternative to the more familiar Crime and Punishment. Welcome, because it both: avoids the equally familiar overtones and assumptions; and extends the boundaries to encompass childish naughtiness in the first word and rehabilitation in the second. As viewing on Television any debate remotely related to this subject shows, prejudice is rife and opinion impregnable. Relevant facts coolly considered are rarely available. I want to present some facts here, some well known others forgotten, and attempt some cool consideration. Facts first, six of the best, as it were!:

Some research from around 1948 seems to have been neglected: The most important single feature in deterring transgression of any kind is the probability of being caught. The significance of the date is the banning of judicial birching in the UK. And the research showed that probability of detection was far more important than the eventual punishment in deterring offenders, whether it was stealing a jam tart or holding up a bank.

Everyone knows that a child's favourite philosophic cliché is It's not fair. Perceived fairness will guarantee acceptability of almost any imposition upon it. It may not be widely known that a similar desire for and acceptance of fairness is prevalent among adult offenders. That hope is cherished long before the case is tried and especially if the offender is in prison on remand. To him the completion of the trial is a relief and outcome entirely acceptable if he perceives it as fair.

I deliberately referred to he is the last point, but it has to be accepted that the eventual concomitant of female emancipation, and more recently Girl Power, will be for society to need as many female prisons as it does male. However for the moment I shall stay with he, noting only that when she is good she is very very good but when she is bad she is awful.

The general public regards prison as a means of keeping the criminal inside. Many prisoners, especially if their crimes arouse public hatred, regard it as a means of keeping the angry public out.

In a recent discussion on the treatment of bullying with someone representing a modern approach compared to what we might loosely call my traditional one, I was thinking all the time why does her method work, when mine was clearly the more hopeful!!?. The answer was slow to dawn. The method was next to irrelevant, what mattered was determination to stop bullying happening, a determination we clearly shared.

Finally no-one should declare even the most progressive prison as soft until they have experienced the removal of personal freedom. Neither should they ever undervalue personal freedom.

With these facts in mind I ask for an end to polarised debates on subjects like corporal punishment or the effectiveness of prison. I should like those who constantly cry What about the victims to actually think how the victims are best served. Above all we need to realise that transgression is a feature of society not of the individual. A single child is rarely naughty, unless his keepers provoke him. Give him a playmate and one or both of them will think of mischief. With three the problems multiply exponentially. The climate of society is all important, not just as it reflects on the criminal but also on the police. If the general consensus is that nothing can be done about it, then crime will flourish. Witnesses are afraid to come forward not so much because the criminal might get them but because society will not back them up. With regard to children there is a general perception that, you daren't touch them these days. You don't need to: just give them the very clear impression that in the last resort you might. There is no greater means of controlling a child than his inner belief that my dad would kill me if I did that, hyperbole though it hopefully is. So the watchword for deterring transgression is determination. When I say that the watch word for correcting it is forgiveness I shall be thought to be a woolly liberal. But I hope that what follows shows otherwise.

A Chief Inspector once claimed to me that his belief in an eye for an eye was Christian. In fact it was a first Old Testament step towards liberality in restricting the punishment to match the crime rather than exceed it, as in the idea of stoning to death those who disobeyed their parents. The genuine Christian approach is forgiveness but that is not a soft option for either the forgiver or the forgiven. Dealing first with the forgiver, it is the only healthy option. A lifetime of bitter hatred and resentment does the victim no good whatever and the offender little harm. That does not mean that victim must embrace a view that the crime does not matter. On the contrary it means a stoic attempt to reject bitterness and hatred which will be made a little easier if the offender is adequately but not excessively (i.e. fairly) punished. Conversely the transgression will only be corrected if the offender accepts the punishment and regards it as fair. Clearly the victim and the offender might well have different views on what is fair. The former in his anger will seek retribution, while the offender will secretly be glad if he gets off lightly. Such is human nature. A first step is a recognition by both parties of that situation. The second is negotiation. I know that it works between adult and child from long experience. During the debate that preceded the abolition of corporal punishment in schools, that experience led me to suggest an obvious resolution of the problem posed by those who claimed to be on the side of children's rights: Let the child choose the form of punishment. Of course that would have been heresy to the cane wielding head-teachers I knew in the seventies; as was the question I once put to their Education Director who was against corporal punishment: Why does it have to be so hard? He was appalled at the question. He was against corporal punishment, but to soften it was anathema, very strange. On the whole it was best that it was banned in that climate. That does not alter the fact that negotiation can work in a climate of trust. Trust begins from the first step I have already mentioned: a joint recognition of the frailty of human nature and can end with the giving and receiving of forgiveness. I recommend it and negotiation as the basis of parenting, rather than the current nonsense of holding little ones in the naughty chair. How might trust and negotiation work with adult crime?

Trust is clearly absent in the first instance, but it might begin with mutual trust in the Justice System. That cannot happen unless both sides understand and accept it. Accept it, that is, for the necessarily flawed system that it is:

First it is very broad brush and, despite the oath, cannot begin to elicit the whole truth. If you have ever tried to find a particular short sequence somewhere on a three hour video tape you will understand how long it might take to get the whole story about anything. A psychiatrist once complained that I had omitted features of my life when he interviewed me. How could it be otherwise, it is not possible to tell even the relevant features of a life story in an hour.

Second it is designed as a game. The defendant has a sporting chance of getting off. The prosecution is NOT concerned with ascertaining the truth, whatever the friendly policeman may say when you help with his enquiries. They are entirely and only concerned with constructing a prosecution case.

Third Most convictions occur only when the culprit says I did it, or several witnesses say he did it. That may change with the increasing use of DNA profiling but most probably it will increase the number of guilty pleas rather than catch those determined to bluff it out.

Obviously it is not going to help a victim with his forgiveness if the defendant is found not guilty. However understanding how that might come about might alleviate some bitterness. Only when the defendant accepts his guilt could negotiation begin. It could be done between the barristers on each side but not as often happens with plea bargaining, rather with the active participation of victim and offender. At present every one knows that the victim does not control proceedings and may be excluded altogether. It may not be widely known that (in the UK) it is equally difficult for the defendant to take part, especially if he has pleaded guilty. He is in the dock, the barristers are on the floor of the court. They are reluctant to put their client in the witness box because he might then say something they know nothing about. In the United States it seems to be different and they also allow victim impact statements. An emotional outburst of the victim's pain in open court is not what I have in mind. In private yes, if both sides agree and want to reach an understanding of what punishment or perhaps restitution might be in order. It is easy to think of high profile wicked crimes where this obviously would not work. But most work of the Courts is not in that category and both sides might welcome the opportunity to express themselves away from the glare of publicity. Perhaps the system puts too much emphasis on the need for Justice to be seen to be done or rather interprets it entirely in terms of the public seeing. Much more important is that the victim sees it done.

Remembering that the defence barristers may well have given the victim a hard time, although not usually with a guilty plea, there are a different group of people who could be used to aid the negotiation instead: Those on the parole boards. They are also much cheaper! When they consider parole after the convict has been in prison the prescribed amount of time, two issues are prerequisite: The convict must accept his guilt and show some remorse. These are exactly the prerequisites of the negotiation over punishment that I am suggesting.

Returning to the more general concept of transgression, the correction of it first requires determination and may well begin with punishment, but to be effective it must be perceived to be fair by transgressor and the victim. It should include the feature of deterrence, which must include rehabilitation whereby the transgressor finds peace with society . But above all it should seek to bring as much peace as possible to the victim. Peace on both sides can be achieved only by negotiation and that is just as true between warring nations or parties in an industrial dispute as it is between a parent and a jam stealing toddler. The achievement of peace in correcting transgression can properly be called forgiveness.

From the Book of Hebrews, Chapter 12 verse 11

Now no chastening for the present seems to be joyous, but grievous: nevertheless afterwards
it yields the peaceable fruit of righteousness unto those who are exercised thereby.

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