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Guilty Acts and Bad Minds

What is the relation between a criminal justice system and the society of which it is a part? Danu asks what Breivik, James Bulger and Bastøy can tell us about ourselves.

Guilty Acts and Bad Minds

“A man’s character is most evident by how he treats those who are not in a position either to retaliate or reciprocate.” – Paul Eldridge

The way a society treats its criminals can be thought of as a reflection of its character. It seems banal to observe that a society’s criminal justice system reflects the broader values of that society, so allow me to unpack what I mean by that and why it is of some interest.

This begins with an acknowledgement of the essentially constructed nature of the phenomena we are describing. We may say things like ‘society’, ‘justice’ or indeed ‘criminal’ and assume we can agree on what they mean, but such categories are far from fixed — indeed, like most categories, upon closer examination they turn out to be quite fuzzy.

For instance, it is hardly novel to point out that a criminal only exists because of the law that created him. To observe this is only to remind ourselves of von Feuerbach’s maxim nullum crimen sine lege — there can be no crime without laws. We have thus already established the political nature of law and crime — it is part of the apparatus of state. Let us leave aside for our present purposes considerations of natural law and focus instead on the positive law made by states.

That such laws are a reflection of a society’s values and preoccupations is evidenced by the way they change over time. Alcohol was prohibited entirely in the US for a time, heroin was dispensed as an over-the-counter children’s medicine before it became an illicit substance and gambling was at various times outlawed before it became a major source of government taxation revenue.

Although these examples should be sufficient to make the point, it is important to note that frequently the categories of activity and people they describe are themselves social constructions. If bigamy is to be a crime, then we must first have some understanding of what we mean by ‘marriage’. If it is a crime to outrage a woman’s modesty, we must first have constructed an idea of modesty and linked it to certain social actions which are themselves placed somewhere on a related continuum of acceptable behaviour. It would be a grave (though common) mistake to assume that these terms behave as labels we can simply pin on concepts that exist ‘out there’. With Ian Hacking, we could ask, rhetorically:

Were there any perverts before the latter part of the nineteenth century? According to Arnold Davidson [1990], “the answer is no … Perversion was not a disease that lurked about in nature, waiting for a psychiatrist with especially acute powers of observation to discover it hiding somewhere. It was a disease created by a new [functional] understanding of disease.” Davidson is not denying that there have been odd people at all times. He is asserting that perversion, as a disease, and the pervert, as a diseased person, was created in the nineteenth century. Davidson’s claim, one of many now in circulation, illustrates what I call making up people.1

This ‘making up’ of people is an essential part of how a society understands and regulates itself. The social structures and power relations by which this process occurs make for fruitful and fascinating study. To use another example, there were no ‘adolescents’ before they were made up and popularised by psychologist G. Stanley Hall in 1905. As Bessant describes:

Hall depicted adolescents as difficult, often moody and rebellious. Adolescence was a period of ‘storm and stress’. ‘The adolescent’ was troublesome and angst-filled as they took the ‘precarious’ path from childhood to adulthood. For Hall, who as we may remember brought Freud to America, the key problem was sex — adolescence was a ‘period’ of turbulence when newly liberated sexual hormones threatened to overwhelm the young person. ‘The adolescent’ simply could not be permitted to give expression to their sexuality, but needed to wait until they became mature adults and could marry. Hall’s preoccupation with repressing ‘adolescent sexuality’ in the interests of social order had a lasting impact on the narrative of the experience of being ‘adolescent’. In declaring adolescents to be naturally difficult, moody and rebellious, Hall launched the modern story of teenagers as problematic, difficult and different to the rest of the population.

Such narratives, and the manner in which they enable the creation of ‘folk devils’, to use Cohen’s term2, have profound and direct implications for criminal justice. In Victoria, for example, police have the power to stop and search young people who they suspect might be about to commit a crime. One might think this would run counter to existing anti-discrimination legislation, the right to freedom of movement as described in Victoria’s Charter of Human Rights and Responsibilities, or indeed the presumption of innocence. However, so great is the apparent threat of adolescent troublemakers that the Department of Justice were able to secure an exemption to these protections, thus legally codifying and legitimating the very kind of practice the rights legislation was designed to prevent.3

All of this is merely to demonstrate the messy, political and often irrational nature of ‘societies’ and ‘systems’, which is often masked by the bland, neopositivist language of textbooks that would prefer to assert that such matters are a great deal more simple and straightforward than they actually are.

If a society makes decisions about what it chooses to criminalise, how it chooses to treat those who it decides are criminals, and by what means and standards it is to be determined whether a criminal act has occurred, what might we learn by comparing the similarities and the differences between them?

Let me quickly clarify that when I talk of societies making decisions, I do not mean in the Durkheimian sense of society as an external force acting upon its constituent members. ‘Society’, in that sense, is imbued with powers that do not really seem plausible — in fact, Durkheim’s entire functionalist account of sociology and its attendant idea of ‘social facts’ appears faintly silly from a social constructivist perspective. I do not mean that society decides anything. I mean that people decide, through the various social interactions and mechanisms which are available to them, and that this ongoing phenomenon is what we can call society.

To return to the question of what can be revealed through comparison, it may be helpful to explore some extreme, limiting examples. If a society’s values are expressed in its laws, occasionally those laws are not just broken but smashed, the values that underpin them affronted in ways that society’s members struggle even to comprehend. What follows then, I want to propose, is an extreme test of social character.

In 1993, two-year-old James Bulger was abducted from a supermarket in Liverpool, England by two ten-year-old boys, who beat him to death and left him tied to railway tracks, where his body was severed in two by a train before being discovered two days later. This event, and the CCTV photo which accompanied it, were seared into what for want of a better term we’ll call Britain’s collective consciousness.* The Norwegian case of Silje Redergård in 1994, which sometimes invites comparisons with the Bulger case, is less well known. Though the details are different, there are some startling parallels. Redergård was five years old and playing in the snow with two six-year-old boys, who at some point started beating and kicking her before stripping her of her clothes and leaving her to die in the cold.

A large part of dealing with extreme phenomena is the struggle to make sense of what happened. In Bulger’s case, the language of evil was quickly deployed. In an illuminating essay on this subject, Terry Eagleton asserts that calling something or someone evil is a way of not thinking seriously about the problem, placing the matter ‘beyond comprehension’ and ‘without a cause’.4 In some ways this understanding of evil is a way of abrogating responsibility, insisting that what happened can’t be made sense of.

Leaving the discussion of the incidents themselves for another time, is there some sense to be made of how two societies handled similar cases? The trial judge in the Bulger case decided the names of the ten-year-old perpetrators (Robert Thompson and Jon Venables) should be released to the public. In the Redergård case, the perpetrators names are still not known outside of the community where it happened. Neither did the event provoke the same kind of national outrage. Kicking off the moral panic in the UK, then Shadow Home Secretary Tony Blair remarked that ‘We hear of crimes so horrific they provoke anger and disbelief in equal proportions… These are the ugly manifestations of a society that is becoming unworthy of that name.’ The Sun newspaper organised a successful petition to have the boys’ sentences increased, while then Prime Minister John Mayor said baldly that ‘society needs to condemn a little more, and understand a little less’. Bulger’s mother Denise Fergus is still active in the media, has made attempts to track down at least one of the perpetrators since his release, despite him being given a new identity, and speaks of being ‘paralysed by hate’.

In Norway, there were no photos or descriptions of Redergård in the media. Her killers were not tried as adults or convicted of a crime, instead they were put into child protection services. (Though they were younger than Thompson and Venables, Bulger’s killers would not have been tried as adults in Norway either as the country’s age of criminal maturity is 15.) Interviewed in 2010, Redergård’s stepfather Jorgen Barlaup said of Silje’s killers:

We’ve forgiven them for being children, but we’ll never forgive them for what they did, if that makes sense … If we’d gone around hating children afterward, we wouldn’t be able to love our own children, and we remember Silje best by loving our kids. I mean, Silje won’t come walking through the door.

Granting the limitations of the comparison and the different ways individuals cope with difficult circumstances, can these two experiences of criminal justice tell us anything about the societies in which they occurred?

The comparison can be made sharper when we begin to examine the assumptions that underpin the different behaviour and comments. In the UK example, the assumption appears to be that the commission of a crime is brought about by an individual’s choice to do wrong, and that this stems from a deficiency of moral character. There is something bad in them. The police detective in charge of the Bulger case, Albert Kirby, claimed that some children are simply born evil, perhaps, as Eagleton suggests, as ‘a preemptive strike against those who might appeal to social conditions in seeking to understand why they did what they did’, given that ‘such understanding can always bring forgiveness in its wake.’5

In this view, there are good people and bad people. If bad people do bad things, then the system of criminal justice is going to be about both identifying bad people and getting to them before they do bad things, and about punishing those who have already done them. It is in this context that John Mayor’s call for more condemnation can be understood.

In the Norwegian example, it still appears to be assumed that the commission of a crime is brought about by individual choice, but this doesn’t necessarily point to a failure of moral character. It could be that they did not comprehend the wrongness of their actions, or that the choice was not fully theirs. Whatever the explanation, the assumption is clearly that something went wrong with them, but not in them. In this view, some people are not bad, but broken. If broken people do bad things, it follows that the system of criminal justice is going to be about addressing the causes of brokenness, and mending those who are broken. When a Norwegian prison governor says ‘If we treat people like animals when they are in prison they are likely to behave like animals. Here we pay attention to you as human beings’, we see this assumption at work.

This difference in assumptions is evident in both Bulger’s and Redergård’s respective cases and reflects broader preoccupations with retributive and restorative approaches to criminal justice — the conceptual rationalities at work dictated that Thompson and Venables had to be punished, while Redergård’s killers had to be protected.

In a detailed study of the two cases, David Green expresses this difference in social and political cultures in terms of Britain’s adversarial culture versus Norway’s consensus-driven approach.6 He describes Britain’s handling of the Bulger case as an incidence of ‘penal populism’ and explains the prevailing political climate in part as a decay in public confidence in state institutions (such as the welfare state) brought about by a shift to a neoliberal paradigm of governance. Norway’s commitment to a welfare state model, by contrast, remains ‘strong and egalitarian’.7

Norway’s consensus-driven and deliberative approach to criminal justice can also be seen in practices such as lay judges and the procedural space afforded to the hearing of victims’ testimony. This latter feature is part of the public, cathartic nature of the restorative approach, with its emphasis on mending what is broken.

The direct voice given to victims made for a particularly dramatic spectacle in another extreme case, that of Anders Breivik, the Norwegian ultra-nationalist who killed 77 people in 2011. The language of inexplicable evil was similarly present in this instance, and as such the majority of the trial was an attempt not so much to determine Breivik’s guilt, but his sanity. Eventually he was found to be sane and received the maximum 21-year prison sentence.

The implications of a criminal justice system based on a restorative understanding of justice can be hard to fathom for those who have different starting assumptions. International commentators were wont to describe the proceedings as a ‘test’ of Norway’s criminal justice system, implying that Norwegians should fret that the maximum 21-year sentence is not up to the task of punishing someone like Breivik. In practice, Breivik’s sentence could (and probably will) be extended indefinitely in five-year increments if he is judged to pose an ongoing threat.

Similarly typical in their cognitive dissonance were reports that tried to explain the virtues of restorative approach while simultaneously wanting to find fault with them, handling the unfamiliar and prickly ideas like a cat negotiating a cactus. One journalist prefaced his critique of restorative justice by saying ‘as a moral human being, it’s hard not to feel appalled, even outraged’ that this ‘monster’ only received a 21-year sentence. After begrudgingly listing the restorative system’s advantages, in the end he settled for this illuminating though hardly spirited defence of his own society’s system:

But is the retributive-style need for justice and fairness really only about “revenge,” or is it something more important than that? The retributive approach absolutely has its pitfalls — the American system’s heavy emphasis on punishment has a history of leading it to horrific excess and abuse — but at least it’s meant to be just.

I mention this road of well-paved intentions because it is a good example of what moral psychologist Jonathan Haidt refers to as ‘moral dumbfounding‘.8 By this he means that our moral reasoning is based on intuition, and that even after all reasons for it have been exhausted and rebutted, we still cling to our initial intuition.

Perhaps it is also this moral dumbfounding which prompts the frequent visits and study tours by baffled overseas journalists and social researchers to Bastøy Prison, Norway’s rehabilitative minimum-security island prison where inmates work on farms, play tennis and go horse-riding, while taking on a variety of responsibilities in preparation for a return to society.

We can see then that the underlying assumptions and moral intuitions that are found in different societies have a huge impact on how that society understands itself and constructs its problems and solutions. But is simply observing this distinction enough to explain it? Why does Norway have a restorative system while Britain doesn’t?

International social comparisons are fraught for all sorts of reasons. It would be fallacious to suggest that everyone in a society has the same assumptions, or that the thinking they enable is applied the same way in all circumstances — I have already pointed to the difficulties inherent in taking seriously ideas such as a national psyche, for instance. But there are some interesting observations to be made about a society’s social and political history.

Much of the taken-for-granted thinking about human nature and about the role of government in England and in countries such as Australia and the United States which share common British political ancestry, can be described as Hobbesian. That is to say, it is commonly thought that left to their own devices, humans are naturally wicked, untrustworthy and prone to vice. Without the intervention of a strong regulating power to secure law and order, it is thought, people would simply run amok. Hobbes referred to this running amok as the state of nature, which he characterised famously as a ‘war of all against all’ where people’s lives are ‘solitary, poor, nasty, brutish and short’.9 Hobbes’ political thought was profoundly influential and echoes of it are easily discernible today in political language (e.g. forging a new social contract, keeping the peace), popular culture (e.g. Lord of the Flies, Big Brother) and media representations of certain issues (e.g. welfare cheats, immigrants).

Despite the enduring appeal of Hobbes’ view of human nature, the evidence that this is really how people do behave is remarkably thin. In fact, studies by psychologists and behavioural economists, such as the famous ‘prisoner’s dilemma’ experiment, show that people tend to be stubbornly cooperative in a wide variety of situations.§ Nevertheless, the moral intuition that people are basically wicked still persists.

Interestingly, there are some quarters of political and intellectual culture which have embraced the notion of a war of all against all. The rugged individualism of industrial capitalism turns on this idea, as does the neoliberal brand of individual freedom advanced by the Chicago School of Economics, in which the powerful regulating force is not government, but the market. The imagery of this psychological landscape is perhaps best captured in Ayn Rand novels, which gained considerable purchase among America’s intellectual elite (former US Federal Reserve chief Alan Greenspan was a notable devotee) and which still remain popular today. For Rand, the war of all against all is a given — the point is to go out and win it.

The link between this kind of cultural study and criminal justice may seem tenuous, but there is a serious point to be made — what if a society’s values are deeply in conflict with its laws? The ideal citizen may in fact turn out to be a criminal. This is certainly a proposition that we can see entertained in a story like American Psycho, or perhaps even more subversively, in No Country For Old Men. In these stories, the character who most embodies the virtues of individual self-sufficiency in the pursuit of rational, calculated self-interest also just happens to be a psychopathic murderer. The US literary landscape is full of this kind of bleak existential brooding at present, perhaps as this is the society where the undergirding social consensus has broken down most spectacularly and conspicuously.

While the textual significance of these survivalist stories is an interesting subject in its own right, we need not look further than real life to see similar contradictions at work. The Enron collapse is a paradigm example, where the same practices that invited widespread praise as part of a narrative of competitive mastery and corporate ingenuity were later condemned as reckless, negligent and criminal examples of large-scale fraud. Briefly the largest corporate meltdown in history, Enron was soon eclipsed by the events of the global financial crisis, where financial wizardry and fraudulent bastardry went similarly hand in hand. But it isn’t the bankers who are filling US prisons.

Which brings us finally to the question of the system. We cannot afford to overlook the manner in which the criminal justice ‘system’ contributes to the maintenance of social order. In Durkheim’s functionalist account, some ‘deviance’ in society is to be expected and is even beneficial as it provides the opportunity to set a collective example by reinforcing social norms. For Durkheim, it is the presence and functioning of social norms that dictates the health of a society. He is not concerned at all with the content of those norms — leaving us with the implication that a cannibal society, for example, would be moral provided that its different structures functioned effectively together as an overall organism. That Durkheim, originally a biologist, should choose a biological metaphor for his account of sociology only points once again to the significance of the categories we use to construct our experience of the world.

Other social theorists such as Stanley Cohen10 reject Durkheim’s cohesive account and prefer to characterise society instead as a site of ongoing conflict over class, ethnicity, gender and other markers of identity, in which ‘deviant’ becomes a label we pin on undesirable people. This radical critique of the classical sociological story has certain aspects in common with proponents of ‘labelling theory’ such as Frank Tannenbaum and Howard Becker, who agree that calling something ‘deviant’ satisfies a social need to control certain behaviour, but see deviance as socially constructed. In this understanding, labelling is a method of exercising power and social control, as those we choose to call deviant will eventually take on and live up to the label.11 As Merton says, ‘To put a complex argument in a few words: instead of the deviant motives leading to the deviant behavior, it is the other way around, the deviant behavior in time produces the deviant motivation.’12 Foucault’s landmark genealogy of prisons in turn identifies the criminal justice system as an administrator of ‘discipline’, an invisible but pervasive state force that regulates not only the body, but the soul, in ways which encourage self-policing societies.13

These latter perspectives share a preoccupation with power and process which they rightly identify as absent from the classical sociological story. But they also neglect to give a normative account of either truth or good, and in this respect they are no more able to say anything meaningful about what constitutes a good criminal justice system than Durkheim and the example of the cannibals. This is an omission that is cause for some concern. Part of the point of conducting comparisons at all must surely, having done so, be to engage in some kind of evaluation.

Are we able to say, after looking at the handling of criminal justice in Norway and the UK, which is better? More importantly, on what basis can we do so? One common test is to look at rates of recidivism. On this measure, Norway clearly outperforms the UK (even with the usual caveats about these kinds of statistics), with recidivism estimated at 20% compared to 72% respectively. But even leaving aside the problem of interpreting statistics, is this emphasis on outcomes really satisfactory? There are surely some Norwegians who would insist on a restorative approach to justice even in the face of unfavourable evidence of ‘success’, just as there are those in Britain who would insist on harsher punishments for people like Breivik even in the face of evidence that doing so serves no useful purpose (at least it’s meant to be just!) This is why it makes sense to consider such things in terms of character.

As part of the apparatus of state, with all the political questions of power, control and instrumental rationality this implies, a society’s criminal justice system dispenses judgment on those it has chosen to single out for violations of its values. In the process of doing so, it reflects and performs the assumptions which inform those values. It is in the matter, the method and the manner of this performance that a society can itself be judged. ◾

Footnotes

* This is another term popularised by Durkheim which I use with some irony here, as there is debate over whether by ‘collective’ consciousness Durkheim intended to reify the idea.

This is not unlike former Australian Prime Minister Kevin Rudd’s swift condemnation of photographer Bill Henson’s art exhibition in 2008, which featured photographs of nude children. Setting the tone of public debate, he said publicly that the photographs had no artistic merit and that he found them ‘absolutely revolting’.

It is an interesting question to what extent Norway’s (and its Scandinavian neighbours’) social consensus is a product of its relative racial homogeneity — immigration continues to be a heated political issue. While it would be a stretch (and insensitive) to say Breivik is a reflection of this, it is surely true that his actions have in some ways opened the issue further, while at the same time contributing to the silencing of aspects of this debate.

§ Yochai Benkler has collected a comprehensive and entertaining volume of such examples in his book The Penguin and the Leviathan, Crown, New York, 2011.

References

1 I. Hacking, ‘Making up People’ in Reconstructing Individualism: Autonomy, Individuality and the Self in Western Thought, T. Heller & C. Brooke-Rose (eds), Stanford University Press, Stanford, 1986, p. 222.

2 S. Cohen, Folk Devils and Moral Panics (Third Edition), Routledge Classics, Oxon, 2011.

3 J. Bessant, ‘Reasonable Limits and Exemptions: Victoria’s Human Rights Charter and Its Implications for Young People’, Youth Studies Australia, 2009, Vol. 28, No 2, pp 14 – 22.

4 T. Eagleton, On Evil, Yale University Press, London, 2010, pp. 2–3.

5 ibid., p. 2.

6 D. Green, When Children Kill Children: Penal Populism and Political Culture, Oxford University Press, Oxford.

7 ibid., p. 51.

8 J. Haidt, The Righteous Mind: Why Good People are Divided by Politics and Religion, Allen Lane, New York, 2012, pp. 36–40.

9 T. Hobbes, Leviathan Parts I and II, A. P Martinich & B Battiste (eds), 2011, Broadview, New York, p. 14.

10 Cohen, op. cit.

11 F. Tannenbaum, Crime and Community, Columbia University Press, New York, 1938.

12 H. Becker, Outsiders, Free Press, New York, 1963 (revised 1973), p. 26.

13 M. Foucault, Discipline and Punish: The Birth of the Prison, Penguin, London, 1991.

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