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
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