Vengeance is Mine, Sayeth the Professor

I don't do this often, but I think it's time for a political rant! The trigger is this recent letter written to the New York Times:

To the Editor:

As one of three generations of Bernard L. Madoff victims myself, and a criminal law professor who calls for proportional punishment — no more nor less than deserved — I read with concern reports claiming that Mr. Madoff received the “maximum.”

We focus too much on the duration rather than the intensity of his prison sentence. Because he inflicted pain and suffering on unknowing victims in order to achieve an undeserved lavish lifestyle, every day in prison for the rest of his life he should eat nothing but tasteless Nutri-loaf and clean latrines. Then and only then will we victims come close to being satisfied.

Robert Blecker
New York, June 30, 2009

Blecker's website can be found here. He is indeed a criminal-law professor, perhaps best-known for his tireless advocacy of the death penalty. To me, that's neither here nor there -- let a thousand flowers bloom, and all that. But this letter represents so much of what I find annoying about American criminal-justice discourse. Perhaps about American discourse in general. Let me list the ways:

• Look how fair I am! The longer I live in Europe, the more Americans' insatiable appetite for self-congratulation, well-captured by de Tocqueville, irritates me. Just make your point, Professor, no need to let us know how exquisitely just you are. Also, since you seem to have stumbled upon the answer to a question that has vexed philosophers for millennia, would you mind letting us mortals know how you're able to determine exactly how much punishment ("no more nor [sic] less") is deserved in every single case?
• Manicheanism. American criminal-justice discourse is plagued by a sort of manicheanism that you find almost nowhere else: all responsibility for the crime is displaced onto a depraved 'other' whose black deeds have forfeited his claim to live in human society and differentiates him utterly from us. Sure, Bernie Madoff committed a serious crime and deserves punishment, but his 'victims' came in many different colors. Plenty of them begged to deposit their money with him. And, unlike a desperate cancer patient exploited by a quack, Madoff's victims had safer and more transparent choices -- they just wanted the fat returns he promised. This doesn't mean they share responsibility equally with the fraudster, but it could perhaps be an appropriate occasion for a little, you know, soul-searching...
•  Anything short of torture is coddling. Anywhere on the rest of the planet, most thoughtful people would say a 150-year prison sentence which will certainly require you to spend every single remaining day of your life in an American prison, with no hope of regaining freedom, is a crushing penalty. But I guess all of these people are simply making the mistake the wise Professor gently warns us against: of focusing too much on trivialities such as the mere 'duration' of a prison sentence. Yes, it's the conditions in American prisons that are scandalously lax. Imagine that: you'll see nothing but the inside of an institution until you die in its sterile infirmary. No more sex, no more walks in the park, no more vacations, no more control over whom you spend your time with or what you eat, and humiliating daily searches. Blecker, showing an utter lack of imagination, doesn't seem to have ever thought of prison in this way. He's anxious that a life sentence may let Madoff off lightly. In this, he's got a lot in common with Americans, and with American judges who sentence defendants to thousands of years in prison before getting in trouble and going there themselves, whereupon they suddenly realize it's a vicious, dehumanizing place that serves little purpose.
• Justice is what the victims demand. In addition to his supreme philosophical insight, Blecker also can apparently read minds, since he's able to assure us exactly what all of Madoff's victims will need to see in order for them to be 'satisfied.' Him eating Nutri-loaf and 'clean latrines' (ouch), that is. (Assuming I read that poorly-framed sentence correctly). All that extra, life-long humiliation might be illegal and pointless, but more importantly, it will make the victims feel good, and isn't that the point of the criminal-justice system? But wait -- can it really be true that there's 100% consensus on the Nutri-Loaf issue? I bet you could find many of Madoff's victims would would want to see him executed, and some hippie freaks who might think a short prison term is enough. How to resolve this conundrum? Oh, wait -- I have an idea! How about delegating the right to punish to the state, and creating a reasonably fair, transparent procedure for assessing it?

I could go on, but I suppose you get the picture. How I'd love to debate this Blecker fellow...

[Note: picture of Nutri-Loaf prison food substitute found here.]

 

Comments

[Don]

"I'm not sure Americans are more convinced of their own greatness than Germans."

@Sebastian,

Very perceptive. Although I personally would add the British, French, and Japanese to the list. We all have our particular form of arrogance. ;)

[Ralph Noble]

I have some sympathy with Professor Blecker’s point of view.

The damage Madoff’s Ponzi scheme did isn’t limited to financial losses. I know of at least one suicide, and there may have been more. To add insult to injury, the banking and investment sector has lost credibility: that’s a significant blow to the national economy and will cause further pain and misery.

So, there are many who delight in Mr. Blecker’s punishment: cleaning latrines with a toothbrush and three square meals daily of Nutri-Loaf.

It’s still wrong to take the position of a Polemarchus. One can distinguish, as Plato does in the “Republic,” between a just punishment and an unjust one. It is never good to do evil:

“If, then, anyone affirms that it is just to render to each his due and he means by this that injury and harm is what is due to his enemies from the just man and benefits to his friends, he was no truly wise man who said it. For what he meant was not true. For it has been made clear to us that in no case is it just to harm anyone.”

Here, I take it that Socrates means by “harm” not punishment, which should be remedial, but an expression of malice without any intention of making an unjust man just, but worse in respect of human excellence.

And now, before you nod off, Andrew--I just wanted to state my basic position--let me just add that I received a response from Mr. Blecker. He wrote, among others, that: "Of course had you... either read what I've written or seen the documentary "Robert Blecker Wants Me Dead," you could probably infer that as a retributivist searching for punitive, proportional, like-kind responses, my letter was straightforward and not ironic."

So, there you have it. In my reply, I wrote:

"Madoff has done very great harm. That's indisputable. The question of a fitting punishment isn't easy to answer.

"The Augean stables daily toothbrush-toilet cleaning doesn't seem appropriate to me--deserving, yes, but not appropriate.

"First, if our justice system punishes him in this way, there's a risk that the system will be seen as petty, vicious, fanciful, resentment-filled--not
as an impersonal and fair adminstrator of punishment. The Nutri-Loaf and latrine cleaning penalty, harsh though it may be, has a ludicrous aspect. It
reminds me of a fraternity or summer camp stunt.

"Second, there are crimes so heinous that no punishment can ever right things again. One among many examples is the Holocaust. There is no way to punish
an Eichmann in such a way as to give complete satisfaction to his victims. Madoff's case is not so severe, but it's similar. Making him clean latrines
is not going to right the injustice done to his victims.

"Third, even a Madoff is entitled to some--admittedly small--measure of dignity. He should be compelled by remedial punishment to reflect on the
gravity of his crime and to come to terms with it. And the justice system should retain its dignity by allowing him to do so.

"The current punishment seems adequate. Madoff will be behind bars for the rest of his life. He'll be forced to reflect about what he did and its
consequences, and ultimately such a process of reflection is likely to inflict more pain than cleaning latrines."

[Ralph Noble]

I remain unconvinced. De Tocqueville’s observations could just as easily apply to other nationalities. I see patriots—and nationalists—everywhere. But enough. The question of American self-congratulatory patriotism defies rational approaches. It has deep emotional roots, after all, and I suspect that we expatriates—whether “ex-patriots” or not—have blind spots we’re largely unaware of, even on this fourth of July in the first year of an Obama presidency.

Regarding U.S. imprisonment, I’d just like to note an informal conversation I had with a German police detective last year. He said it was becoming harder for him to do his job. In the last twenty years, he had seen crime become more serious and more frequent, while the means available to him were becoming more limited. He said he had invested time and effort in tracking down criminals and bringing them to court, only to see the court dismiss proceedings—“Verfahren eingestellt”—again and again. In effect, what used to be regarded as a crime was now simply written off or at most the subject of a report destined for the wastepaper basket and oblivion.

He said the police were under political pressure and that the aim of politicians was to manipulate statistics to present a more favorable image of society and, of course, to get re-elected.

In view of the all-too frequent nolle pro, might it be that one reason incarceration rates are lower in Germany is that criminals are not being punished as they should?

[Andrew]

Casey:

Here is a link to the relevant section:

http://www.marxists.org/reference/archive/de-tocqueville/democracy-america/ch36.htm

And here it is in full:

All free nations are vainglorious, but national pride is not displayed by all in the same manner. The Americans in their intercourse with strangers appear impatient of the smallest censure and insatiable of praise. The most slender eulogium is acceptable to them; the most exalted seldom contents them; they unceasingly harass you to extort praise, and if you resist their entreaties they fall to praising themselves. It would seem as if, doubting their own merit, they wished to have it constantly exhibited before their eyes. Their vanity is not only greedy, but restless and jealous; it will grant nothing, whilst it demands everything, but is ready to beg and to quarrel at the same time. If I say to an American that the country he lives in is a fine one, “Ay,” he replies, “there is not its fellow in the world.” If I applaud the freedom which its inhabitants enjoy, he answers, “Freedom is a fine thing, but few nations are worthy to enjoy it.” If I remark the purity of morals which distinguishes the United States, “I can imagine,” says he, “that a stranger, who has been struck by the corruption of all other nations, is astonished at the difference.” At length I leave him to the contemplation of himself; but he returns to the charge, and does not desist till he has got me to repeat all I had just been saying. It is impossible to conceive a more troublesome or more garrulous patriotism; it wearies even those who are disposed to respect it.

[Casey]

"The longer I live in Europe, the more Americans' insatiable appetite for self-congratulation, well-captured by de Tocqueville, irritates me."

I lived in Europe for 12 years and that captures in one sentence many inchoate thoughts I have had. But, can you give me a better cite to Mr. Tocqueville on the point.
Thanks

[Ralph Noble]

Mr. Blecker appears to be a self-styled firebrand, someone who enjoys gadfly provocation, especially in academic circles. An inclination I have some sympathy with. Anything to relieve the tedium and to rumple the stuffed shirts.

It's the absurd cruelty of the punishment that makes me believe he's not entirely serious. It calls to mind Swift's "A Modest Proposal." But then, values differ as do tastes. You may be right about Mr. Blecker.

Perhaps Professor Blecker himself would like to weigh in on this one. I'll send him an e-mail with a link to your entry.

Regarding American punitiveness, yes, regrettably, such sentiments are prevalent. Just visit your local multiplex: retributive violence has become a popular art form. The so-called prison-industrial complex in the U.S. is firmly established, the per capita incarceration rate is the world's highest, and the trend is toward more severe punishment, even of non-violent offenders. Finally, let's not forget the eye-for-an-eye vindictiveness of foreign policy under G. W. Bush.

To do evil is never good, as I was just re-reading in Plato's "Republic," whether to one's friends or to one's enemies. Punishment is just if it is remedial, but not if it is an instrument of vengeance. That is clearly true, in my view, but how hard it is to put it into practice.

Nevertheless, not only Americans have to come to terms with punitive violence. The situation is much worse in many other countries. It isn't a specifically American failing but a fault in the crooked timber of humanity itself. Not that you're saying it is specifically American, of course. But in conversation with some of my German friends I gain the impression that this is a widespread belief.

But I digress. All the best to you, especially as you work in this sweltering heat toward completing your book, and perhaps Mr. Blecker will be so kind as to respond to my e-mail, and you can continue this debate with him.

[Sebastian Koppehel]

@Andrew:

When's the last time you heard a German politician refer to Germany as the "greatest nation in the world?"

The difference is that the Germans just think that. It doesn't need to be said. But you can still sense it, for example when Germany makes the 18th place of 57 in the PISA study, and a month-long debate breaks loose based on the general consensus that this is an unacceptable disgrace. Or when you read the Manufactum catalog. (I love the company, but, well ...)

By contrast, when Sean Hannity keeps announcing that America is the greatest best country God has ever given man on the face of the earth for hours on end – what does that look like? Doesn't he sound like a guy who can't stop talking about how totally not attracted he is to other men?

I'm not sure Americans are more convinced of their own greatness than Germans.

[Andrew]

Hello Ralph,

First, of all, I'm sure Blecker is serious. Why would a law professor, of all people, lie about his personal involvement in the Madoff case just to make a few awkward jokes that most readers would not even perceive as such? No, the tongue's definitely not in the cheek. A short web search will reveal plenty of writings by Blecker showing his neo-Kantian, retributionist approach to punishment. Or you could watch the documentary "Robert Blecker Wants Me Dead."

Second, I think I'm on pretty firm ground about American punitiveness. Of course, not every single member of a society of 300 million is equally punitive. But especially among the the 90% of the United States that doesn't live on either of the coasts, harshly punitive sentiments are definitely in the mainstream. The bell curve of opinion distribution in the U.S. is clearly shifted to the "right" as compared to Europe, and dozens of sociological studies back me up here. I mean, you don't reach the highest incarceration rate in recorded human history during a period of declining crime just by accident.

I rarely bother to read Stern or Spiegel, but when I do, I also often find their reporting about America tainted by Schadenfreude and resentment. But the point about self-congratulation, I think, sticks. There's a hell of a lot of general boasting in the U.S. When's the last time you heard a German politician refer to Germany as the "greatest nation in the world?" How about politicians who grandiosely play up their religious beliefs, military experience, or 'family values' to win votes? When's the last time you saw a billboard for a church in Germany? Last time I was in Houston (remember, we're not talking about the coasts here), I saw about 40 -- in 10 minutes of driving. Oh, and how about all those university buildings -- and even entire faculties -- named after rich donors? I could go on, but I think I've at least defended my point.

Cheers!

[Ralph Noble]

I assume you're, at least partly, tongue-in-cheek here, Andrew? Surely, Mr. Blecker, Harvard J.D. 1974, former Vietnam War protester, and a "radical at heart," according to his New York Law School website, is not entirely serious about his prescribed punishment? If so, he can be dismissed readily, and you should be targeting fairer game.

As for purported characteristics of that complex cultural entity, the United States, are you, perhaps, generalizing a bit too much about "American discourse in general"? True, this is the way many people talk in America, whether in blue-collar neighborhoods or law school seminar rooms, but there are also many others who voice entirely different opinions, and sandwiched between these two groups is a bland majority that could not fairly be seen as representing either extreme.

Incidentally, not that I want to invite verbal assault by the politically correct police who regularly patrol your pages, but it struck my attention that the first two alleged features of "American discourse," the "appetite for self-congratulation" and "Manicheanism," are characteristic as well of the substantial numbers of Europeans who, for some good and some not-so-good reasons, regularly criticize America and Americans, or when was the last time you read "Stern" magazine?

[Johannes]

You are certainly right, but your second point above should be stressed, IMO: Madoff is a scapegoat for a system that is sick at heart and many of his victims fully deserve their losses, and maybe some more serious punishment for good measure, once we are in the Manichean vein...
Actually, for me a case like Madoff's is one of the few fun things of that crisis, firstly because it sheds an enlightening light on a corrupt and fraudulent system, of which Madoff was only one of several obviously illegal tips, but which has a huge iceberg of comparably despicable, but semi-legal things underneath.
And secondly, because at least a few people got what they deserved, by being conned because of their greed. Too many will not only get away with it, but they are again in position, former arsonists as firefighters...