May
04

An Honest Look at Punishment

Robert Ferguson's book on the American criminal justice system, Inferno: An Anatomy of American Punishment (Harvard University Press, 2014) ought to be must reading for every legislator, judge and prosecutor in the United States. You will note that I did not include criminal defense lawyers in the list of people who need to read this book -- that is because they already know the truth Ferguson speaks: the criminal justice system is a wasteful failure.

Drawing from literature, moral and political philosophy, legal scholarship and reported cases, the book asks questions that are too often neglected: what is it about punishing others that we find so enjoyable? Is this social sadism really an effective source of public policy? Shouldn't we be working to dismantle a prison-inudstrial system that dehumanizes not just prisoners, but other participants in the system as well?

The fact is, we enjoy the punitive impusle. Ferguson notes that no less an authority than St. Thomas Aquinas tells us so. "In order that the happiness of the saints may be more delightful to them and that they may render more copious thanks to God for it, they are allowed to see perfectly the suffering of the damned," Aquinas wrote in the Summa Theologica.

Indeed, we so love to punish that we've coined a series of toxic aphorisms: "Lock 'em up and throw away the key;" "If you can't do the time, don't do the crime." Read the anonymous comments published by haters after just about any online report of a crime to a glimpse of something raw and toxic. We're exception, all right, in this the land of the free and home of the brave -- we excel at blind hatred. In an uncanny way, the righteous exude the same hostility as the damned: It's hard to tell the difference between Jack Abbott's raging prose in the Belly of the Beast and the vitriolic spume of the law and order crowd railing agains criminal defense laywers.

Ferguson notes three dismal truths about punishment in the United States: We enjoy the spectacle, punishments always seem to increase, and participants in the process, and the public at large, avoid looking at the consequences of punishment. Readers unfamiliar with the work of the late William Stuntz will learn about what Stuntz called "the pathological politics of criminal law" in his seminal University f Michigan Law Review article of that title in 2001.

I read this book with a great sense of relief. As a practitioner, I often wonder whether, to paraphrase Nietszche, an author on whom Ferguson relies greatly, I have stared so long into the abyss that the abyss now defines my perspective. Not so, Ferguson suggests -- the abyss is not an idiosyncratic perspective, the abyss is us -- we've permitted a cancer to grown without our midst, we punish without thinking, enjoying the severity of it all, and waste the lives of all who participate pretending that it is justice we are seeking.

Ferguson teaches at Columbia, but he has the soul of a practitioner. I cannot recommend this book highly enough.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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