Crime and Punishment

Knowing what punishment to mete out is no simple feat. Some forms of punishment may send the wrong message. For example, is it okay to solve problems with more violence? Here are some thoughts on this tough topic.

A Few Words in Favor of Compassion for the Cruel

In choice between cruelty and compassion, beware of false dichotomies.
Mikhail Lyubansky, Ph.D.
This post is a response to Our Justice System Requires Us To Punish Wrongdoers. What If There Were a Better Way? by Mikhail Lyubansky, Ph.D.

"If we are kind to those to whom we should be cruel, we will ultimately be cruel to those to whom we should be kind."

The quote is part of a long email from a friend, a smart, passionate person who is concerned about the world we live in and committed to making it better...or at least to doing his best to prevent it from becoming worse.

The description of my friend is deliberately apolitical. Liberals and conservatives may disagree on strategies, but our needs and wishes are not so different. Most of us want safety and justice and freedom.

The above isn't intended as a comprehensive list.  My point is that most of us tend to agree on what we want, just not on how to get it.

That's how my friend and I are. We agree on the ends. We just differ on the means and even then more in degree than in priorities. A few days earlier we had started to talk about compassion for those that would do us harm (both physically and politically). I am in favor. My friend is skeptical but open to the possibility. The quote (he believes it is from the Talmud) was offered less as a statement of his position than as something to consider. I've been thinking about it ever since.

Of course, I googled it and promptly got distracted by this Nick Lowe song:

Some time later, I found myself reading a piece by Eliav Shochetman titled He Who is Compassionate to the Cruel Will Ultimately Become Cruel to the Compassionate. 

Apparently the Talmud continues to be an influential body of work.

Nick Lowe aside, the trouble with both the quote and the Shochetman article is that they create a false dichotomy. The quote of course creates the dichotomy and quits, but the article goes on to define the endpoints of the dichotomy in a way that supports the thesis, yet is not at all reality based.

First, the dichotomy.

Our choices are not between being cruel or being kind. Thus, in the case of the "detainees" in Guantanamo, our choices are NOT to either torture them or let them all go. We can create a due process that allows an impartial body to determine their culpability. If someone admits "wrongdoing" (I'm just using convenient vocabulary), we can create a restorative process through which they can make amends. If they are found guilty through due process, we can continue to incarcerate them - not to punish them but to ensure our own safety. We can negotiate their release in return for something else we want. In the meantime, we can limit their freedom but treat them humanely (I'll assume we agree on what that means).

Cruel and Unusual Punishment
Do some people really deserve this?
When we think in dichotomies, we limit our choices. I don't want to choose between being cruel to someone who deserves it and being cruel to someone who doesn't. Sure, that's an easy choice, but it's set up to be an easy choice in order to justify being cruel to someone. I reject the dichotomous options. I refuse to be intentionally cruel to anyone.

Second, I don't agree with the meaning that is given to "kindness".

Actually, I don't like the term "kindness" at all in this context.  My reason is that I am not advocating kindness. I'm advocating compassion -- the not-so-radical idea that this person who may have done some terrible things (let's assume that his innocence is not in dispute) is still a person with the same basic needs as any other person.

Compassion is not forgiveness. And it certainly is not a lack of accountability. It just means that I believe that no one is born wanting to rape and kill (psychopathy may be a special case) and the fact that some person has done so -- perhaps multiple times -- means that his/her life has been filled with so much pain that rape/murder was preferable to just carrying on. I don't condone his/her choices and I don't want to do anything to compromise the safety of others, but I feel compassion for the person who experienced such pain.

I want to be clear here, because it's too easy for this point to be misunderstood: I am NOT advocating putting the "perpetrator's" needs and welfare before that of the person or persons who were harmed.  Empathy and compassion are not about priorities. Nor are they about compromise.  What they are about is mutuality.

To be compassionate is to recognize everyone's humanity and to value everyone's needs. This works because compassion is not a zero sum gain.  My feelings of compassion for one person do not lessen my compassion for another.  To the contrary, my personal experience is that when I am in a more compassionate and loving space, I have more to give to everyone around me.

I want to be clear too that compassion is a choice.  When I am not acting with compassion (and I sometimes don't), it is usually because I have given myself permission to not do so. When this happens, I almost always regret it later.  One reason for this is that my lack of compassion rarely results in an outcome I enjoy.  Another reason is that compassion is not charity. To be sure, it can be a tremendous gift to another, but it is a gift to ourselves as well.  Just as torture and other acts of cruelty dehumanize not only the person tortured but the torturer as well, so do compassion and empathy reconnect us to our own humanity. How can that possibly not be a good thing?

There is, of course, a different perspective on this question. It is the perspective of the quote at the top of the article and of Eliav Shochetman's longer piece.  Both arguments ultimately come down to safety. Whether we're talking about terrorists, murderers, or rapists, as citizens, we want some assurance that those who have hurt others before will be unable (or unwilling) to do so again.   

The safety needs are legitimate, but will cruelty really contribute to our safety? In some cases, restorative processes (see previous post) can better meet our needs for safety than incarceration, but sometimes involuntary confinement may be necessary to meet society's needs for safety (psychopaths come to mind). But even then, we can confine without being unnecessarily cruel. 

The fact of the matter is that the death penalty, torture, and other state-sanctioned acts of cruelty are not really about safety as safety needs can be met just as easily and at considerably less cost through other means.  They are, at best, about retribution.  And that's one need I can personally do without.


Addendum 8-20-2011:

Many of the ideas presented in this post were influenced by the work of Dominic Barter, who along with his associates, created a restorative practice in Brazil called Restorative Circles.

Barter will be offering the only 2011 North American Restorative Circle learning opportunity in Urbana-Champaign, Illinois: October 12-16, 2011. Click on links below to register and let me know you saw it here so we can connect at the event!

One Day RC Overview Registration

Four Day RC Facilitation Practice Registration



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Crime and Punishment