Book Review

Citation(2014) 26 SAcLJ 780
Date01 December 2014
Published date01 December 2014

1 The idea of closure is a powerful psychological balm for people who suffer trauma and loss. In the case of crime, closure is usually signified by the moment the criminal is sentenced by the court. That moment, however, also signifies the beginning of punishment for the criminal. The sentencing by the court announces the commencement of punishment for the criminal. But what happens after the prisoner is led away from the courtroom? What is the true punishment that the criminal faces, and is it just? If not, how is it that the American penal system maintains itself in this way? These are the questions Ferguson asks in this book on punishment, the punished and the punishers in America.

2 Theories of punishment are many, with consequentialist, retributivist and rehabilitative theories dominating, but Ferguson makes no attempt to reconcile them or argue in favour of any theory in particular because the problems of punishment are endemic. He agrees with Oliver O'Donovan that it is not even really a three-horse race since none of them could even finish the course.2 He does, however, hold the view that punishment theories are part of the multi-faceted causes of over-punishment in America. The intertwining connections between theory and reality give rise to a dark irony that is obviously clear in Ferguson's account.

3 “He got what he deserved” is often the riposte to any voice that suggests the slightest sympathy for the punished. That is a retributivist attitude, of which Ferguson has much to say. What is muffled by the

anger in those words is the question: “What did the offender truly deserve?” Consequentialism does not fare much better in this regard as a rival to a fairer and more just theory of punishment. In so far as utilitarian aims are hoisted in support of over punishment, it is also the same banner proclaiming the greater good of reducing crime. Ferguson makes a well-argued case based on increasing recidivism connected to prison culture, and the intensity and pervasion of crime within prisons, as to why the utilitarian ideals fail.

4 The question posed above may have no adequate answer, but no attempt at answering it can be adequate without understanding punishment, tearing away the nomenclature of deterrence, dessert, rehabilitation and the vaguest and most elusive one — justice — in order that punishers can understand the nature of suffering that is concealed by the word “punishment”. The mental and physical pains are, however, “poorly understood, difficult to translate, and hard to hold in place long enough to make the precise decision that the law expects of itself”.3

5 In order to help us understand the changing attitudes towards punishment, Ferguson takes us from antiquity, where “brutality in punishment was the norm”, to modern times.4 He begins by examining the central claims of Cesare Beccaria's On Crime and Punishment,5 recalling the words that mocked the theory and practice of punishment from savage times — words that earned Beccaria utmost condemnation from the authority of his day. Retributivist ideas were harshly ridiculed: “Can the wailings of a wretch, perhaps, undo what has been done and turn back the clock?”6 It was an implicit attack, too, on the logic of piety from men such as John Calvin (lawyer turned theologian) for whom punishment was his main teacher. Ferguson explains that logic in these terms:7

God was thought to punish eternally or save absolutely, so those who assume divine sanction for their actions felt empowered to use pain in any way they could. Torture purified and saved those who could be made to agree, while those who continued to disagree received only what was already prefigured for them eternally in hell.

6 That brings us to Ferguson's next chapter, “The Mixed Signs in Suffering”, where he tries to explain the massive problems in understanding the nature of pain in punishment, and the general ignorance that is itself a problem. When such difficulties exist at both the personal and the professional levels, and pain cannot be measured for quantity, duration and inconvenience, the punisher can never truly know what he inflicts on the punished. Yet he behaves as though he does, by describing, as though he knows, the pain of the offender's victims. Moreover, pain as a prelude to redemption and pain as a sign of life's vigour have deep roots in Western religion though religion “discards the sordid details in pain and punishment in a way the law cannot”.8 And before the discovery of anaesthesia, pain was not only a necessary part of life, but God-sent “to be endured with fortitude, character, and no complaints”— as women who sought anaesthesia in childbirth are thought to be cheating nature or God himself. Why, Ferguson asks, should they escape the divine injunction: “I will greatly multiply thy sorrow and thy conception; in sorrow thou shalt bring forth children”?9

7 In modern times, the rise of the victim's rights not only smudges whatever little understanding one might have of the punished, but it also exaggerates the effect of the crime, not just in court but also through media coverage. This happens, for example, when the physical pain of the victim is conflated with the mental suffering of the victim's family, for such statements are usually “freed of the objectivities and restraints that apply to testimony earlier in the legal process”.10 The mixed signs in suffering are further complicated, Ferguson tells us, by the legal approaches to brutality in American prisons. “The deliberate infliction of pain is a crime. What, then, does its clearly illegal manifestation teach us?”11 Ferguson asks. That questions the very foundation of punishment. Judge Gerard Lynch12 once asked how one quantifies a “short sentence” of 78 months? That question goes to the root of how a fair sentence might be measured. In 78 months, Judge Lynch suggested, one could go in when his daughter is 11 and come out when she is 18.13 Yet this never bothers punishers who dismiss offenders with the oft-heard “Let them rot in prison”.

8 With that, Ferguson turns to “The Legal Punishers”, namely, legislators, the police, prosecutors, prison guards and the courts. In this chapter, Ferguson covers a swathe of material that he weaves together to present a more comprehensive picture of punishment by examining the mind...

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