Concerning a Very Old And Painful Question

An old professor of mine used to divide the books of this world into two categories: those that were serious and those that were not. Most of the world's books, he assured me, were not worth reading. Since he was a most learned man, his words had weight with me. His distinction comes to mind whenever I contemplate bulging bookshelves, bookstore windows or publishers' catalogues. It is a comfort to know that there are thousands of books you can do without.

My old professor would have placed Ernest van den Haag's book on God's right hand, among the serious. He would have done so with regret, however, because he was a liberal man and van den Haag is a conservative. Still Punishing Criminals meets all of his criteria of seriousness. It asks hard questions and provides sober, judicious and consistent answers. Since I am not of van den Haag's political persuasion, I think his answers are wrong, but they are certainly worth reading. Punishing Criminals Is a clever philosophical defense of the institution of punishment and a vigorous statement of the conservative strategy of crime control. Conservatives have made all the running in the recent discussions about crime. Liberals and radicals are either recanting in the face of the crime statistics or fighting rearguard actions against the punishment school. Now, in Ernest van den Haag, they have a new and formidable opponent.

Any writer about crime starts with some assumption about how grave the problem is, and as a conservative, van den Haag assumes it is serious indeed. He says, "the decline in the feeling of public safety reflects not media-instigated hysteria but a correct perception." His prescription for the problem is based on a series of arguments about what makes people commit crimes. He argues that people choose the criminal career rationally, by weighing the benefits of crime (money, status, power, sexual gratification) against the costs (punishment). If, according to their lights, the benefits outweigh the costs, they usually choose crime. They are not forced into it by poverty, miseducation, bad company or bad environment. To be sure, these factors may be 'causes' of crime, but they do not 'compel' people to become criminals. Many of the poor, after all, resist temptation and remain honest. Moreover, van den Haag says, crime rates have shown a steady rise despite both relative and absolute improvements in the condition of poor whites and blacks in this country.

Essentially, Punishing Criminals is an argument against the possibility or desirability of distributive equality and a polemic against those who believe that distributive equality will reduce crime. He takes the Tocquevillian position that improving the conditions of the disadvantaged may only increase their expectations, their envy, and their frustration. Accordingly, he denies that greater employment opportunities, better housing and education would bring about a significant reduction in crime.

If liberal social engineering cannot help us, neither, says van den Haag, will therapy, training or counseling of offenders. Criminals are not sick, defective or maladapted. They are, for the most part, as rational as the rest of us. They chose to engage in crime, and they cannot be expected to cooperate with therapies intended to make them regard their choice as irrational, immoral, schizoid or sick. It is interesting that the conservative view of the criminal as a rational actor is shared by many radical criminologists. The left and right at least agree that the psychiatric model of criminality as pathology is both patronizing and deforming.

Since crime is a rational career, selected after some consideration of the costs and benefits, the most effective way to reduce crime is to increase the costs of criminal behavior. Professor van den Haag belongs to the twilight of Leading book publisher seeks manuscripts of all types: fiction, non-fiction, poetry, scholarly and juvenile works, etc. authority' school, who believe that the current social crisis (violence, terrorism, criminality) is largely caused by the failure of rulers to exert their just authority. Punishing Criminals contains a list of ways to restore the authority of law by making detection and punishment more certain and more severe.

He would deny bail to anyone with previous convictions; lower the statutory age for juveniles from 16 to 13 to enable the courts to sentence them with the same severity as adults; and reinstitute the death penalty for lifers who commit murders in prison, skyjackers and kidnappers who commit murder, and spies and revolutionaries who jeopardize the security of the state in times of crisis. In order to increase the conviction rate in the courts, he favors a more restricted use of the 'exclusionary rule,' under which evidence seized without legal authority is kept from the jury. He agrees that the courts should punish illegal behavior by police and district attorneys—but not by throwing out convictions obtained with illegally produced evidence. Thus, the case against Ellsberg should not have been dismissed. The government's misconduct was punishable, but it did not constitute grounds for dismissal as it was irrelevant to the defendant's guilt or innocence.

Professor van den Haag's most controversial suggestion is the detention of dangerous' and violent offenders after completion of their prison term. A 'supervisory court' would select categories of prisoners who stood a 60 to 75 percent chance of recidivism and order their detention in non-punitive surroundings after release from prison. He is not clear how long such offenders should be detained, but implies that they might be kept until they were too old to constitute a danger.

All of this is stern medicine. He is sure to be attacked by those who believe that punishment does not reduce crime, but I am not sure that this is the best line of argument to take against him. Tougher punishment might indeed reduce the crime rate. The question is not whether punishment works, but what price you are prepared to pay for its working. He admits some of his measures make him 'uneasy'. Is the crime situation so serious that it warrants such measures? If detaining dangerous recidivists after their prison terms would reduce the crime rate by 10 percent, should we do it, knowing that the prediction of dangerous is, by his own admission, unreliable? I don't like violent or dangerous behavior any more than Professor van den Haag, but 1 think that people can only be punished for what they have done, not for what they might do.

Ultimately, as he says himself, you line up on these questions according to the relative value you attach to order or justice. If you believe order is the paramount value, and if you believe order is under attack from all sides, as he does, you might well support measures to forcibly detain those who have already paid the formal penalties of the law. On the other hand, if you believe that it is more important for a society to be just than to be orderly, you would probably let the 'dangerous' go and take the chance that they will do harm again. Mr. van den Haag sides with order, I with justice. The choice is not a happy one. He is bothered by the cost to civil liberties of his strategy, I am bothered by the idea of letting people go who may do violence again. But such choices have to be made. Making them is what clear thinking is all about.

Michael Ignatieff is writing a book about penitentiaries in the Industrial Revolution.

By Michael Ignatieff