The metaphor “faces of justice” used throughout this book is meant to remind us that the cumulative decisions that lead to official justice is approximated or blocked by the actual people who make those decisions. In the courtroom the face of justice may be that of the judge, police officer, prosecutor, defense attorney, one of the witnesses, or one of the jury members. Beyond the courtroom it may appear in the same or different guise in the face of a warden or a cell-block officer, probation or parole officer. The positivist goal of justice may be impersonal, as in the iconic figure of a blindfolded, robed woman holding a scale. Realistic justice, however, appears to us through a process in which facts, experience, wisdom, intuition, and negotiation strive together to achieve, as Judge Satter puts it, “what is fair, what is right, what will help.”3
When we consider the impact the justice process has on groups of people, justice may assume a face of a much larger scale. Everyday street wisdom differentiates various kinds of justice: the experiential sophistication of the judicial resources purchased by the rich versus those available to the poor; the justice options of the majority race and language versus those shown to minorities; the justice bestowed on those with political, economic, and religious power in society versus justice for those without such advantages. There are many actual and metaphoric faces of justice.
In this book rehabilitation and retribution are paired as the dominant justice options for two reasons. First, because they were the terms most often used in discussions of criminal justice during the last portion of the nineteenth century and the first eighty years of the twentieth. Second, because the desire to retaliate or to redeem the offender is probably the oldest and most universal response to crime in the development of civilization.
The lex talionis rule (contained in the ancient Code of Hammurabi as well as the Jewish Torah) represents the classic expression of retaliation. It was constructed to minimize an overly punitive reaction to crime. The code specifies “if a man destroy the eye of another man, they shall destroy his eye”; “If one break a man’s bone, they shall break his bone”; and “If a man strike a man’s daughter and … if that woman die, they shall put his daughter to death.” On the ancient slab of Diorite containing the Akkadian script, it is affirmed that the code was established so “that the strong might not oppress the weak, that the widow and orphan might receive their due.”4 It was the first great attempt at codifying a sense of fairness in the search for justice.
The Hebrew version of lex talionis was a broadening of the Hammurabi rule, in that it applied to everyone, whereas the more ancient version carried harsher penalties for the lower classes.5 In later cultures the literal force of the law was softened by interpretations that determined monetary values for minor injuries and substituted fines or other kinds of payment to replace what has been lost or damaged by the offense.
Rehabilitation and retribution are interrelated, linked together in a perpetual struggle—the search for justice. Sometimes they are severely opposed to each other; at other times one complements the other. Each involves complex concepts of human nature, justice, morality, and religious beliefs. But the passionate desire to have revenge after being defeated, or after a crime has been committed, is lodged deep in the human psyche, often with religious roots. Retribution seeks to send a message that society will not tolerate criminal behavior. Its focus is solely on punishment for the crime committed: the penalty required by law or that demanded by moral commandments. By imposing such punishment, society seeks to satisfy the victim, pay back the perpetrator, and discourage crime. The etymology of retribution suggests that it originally conveyed a neutral sense of either reward for good deeds or compensation for bad behavior. For the past three centuries, retribution has tended to carry the more negative connotation of morally or legally justified punishment for committing a crime.
The idea of retribution was co-opted in the sixteenth century to provide a foundation for a more rational reaction to crime. Retribution became a proportional sanction based on the seriousness of the hurtful or illegal act. It was intended to reinforce the authority of law, impress on the lawbreaker that crime will not be tolerated, and appropriately acknowledge the damage done to the victim.
Scholars distinguish between retribution as revenge for crime and retribution as a proportionate response to crime. One aspect is indiscriminate reaction to a perceived or actual hurt. In its most undisciplined and emotional form, the response is purely revenge. Those who have been insulted and injured act to make the offender suffer at least as much, and often much more, than the victim. When retribution is applied within the law, it seeks to retaliate appropriately, acknowledging the victim’s anger and identifying a fair and proportionate penalty for the crime committed. Just deserts, a term that has been around since the thirteenth century and used frequently since 1980, has a long history with respect to finding an appropriate penalty.
The ranks of retributionists over the centuries have included those who believe loss of liberty is sufficient punishment. Others have advocated shaming techniques, corporal punishment, or even death, depending on the crime. Whatever the type of discipline, retribution has almost always been administered to satisfy the sense of justice felt by the victim or by those in power. The assumption is found in almost every civilization that wrongdoings need to be paid for in some way, whether they are considered actions contrary to law (mala prohibita) or contrary to an innate or universal sense of morality (mala in se).
But the desire to heal the offender, to bring him or her back to social normalcy, also reflects human nature. Rehabilitative justice is based on the belief that restoration of the offender is more moral and more beneficial to society. It focuses on changing the criminal behavior and attitudes and thereby minimizing as much as possible the potential for new crime. Rehabilitation advocates argue that retributive justice is counterproductive, yielding only more violence in response. To stop crime at the source is believed to be more effective than reacting to past crime.
The term rehabilitation carries the connotation of doing all that can be done to return an offender to either an original or better condition, helping the offender to acquire new attitudes and behaviors. Its origin, like retribution, can be traced to the earliest indications of a religious consciousness, which extended compassion toward the injured or the rebellious members of the tribe and a desire to retain the offender as a productive member of society. The creation of families, early in human evolution, engendered a willingness to teach good behavior as well as punish bad behavior. Retribution received its strongest rejection by Jesus of Nazareth, recorded in the Gospel of Matthew, a stance that, interestingly, has not been characteristic of most of the churches that call themselves Christian. Nevertheless, rehabilitation within the criminal justice framework in the United States has been generated primarily by those who draw their inspiration from the Judeo-Christian teachings.
As an organized movement, prison reform and the interest in rehabilitation is a relatively late development. It arose in eighteenth-century Italy, France, and England and has been struggling to find and keep supporters ever since. Whereas retribution focuses on the seriousness of the crime, rehabilitation focuses on the reform and restoration of the offender. Although prison rehabilitation programs dominated criminal justice in Connecticut, that approach lost favor in the 1970s, yielding to a severe retributive set of laws and practices.
A new effort to promote rehabilitation, called restorative justice, seeks the greatest amount of reconciliation after a crime has been committed, not just between the offender and society but also between the perpetrator of the crime and the victim or the victim’s family. In Connecticut’s history rehabilitation is preferred to restoration. It may be a force in the future but at present it still operates on the margins of the criminal justice system.
In debates about the purpose of criminal justice, two other goals of punishment are usually mentioned alongside retribution and rehabilitation. One is the incapacitation of the offender, and the other is deterrence of future offenses. Incapacitation is the removal of an offender from society by confinement in a jail or prison. It implies no application of either revenge or redemption. Consequently, while it could conceivably move in either direction, in actuality it usually morphs