The World Until Yesterday: What Can We Learn from Traditional Societies? (24 page)

The remaining purpose behind punishing convicted criminals is to rehabilitate them, so that they can reenter society, resume a normal life, and make an economic contribution to society instead of imposing a heavy economic cost on society as prisoners of our costly prison system. Rehabilitation rather than retribution is the focus of European approaches to criminal punishment. For instance, a German court case forbade the showing of a documentary film accurately depicting a criminal’s role in a notorious crime—because the criminal’s right to demonstrate his rehabilitation, and to have a fair chance of making a healthy return to society after serving his prison term, was considered even more sacred than freedom of the press or the public’s right to know. Does this outlook reflect greater European concern with human dignity, nurturing, and mercy, and lower European concern with Old Testament retribution and with free speech, compared to the U.S.? And how effective, really, is rehabilitation? For instance, its effectiveness seems limited in cases of pedophiles.

Missing so far from our discussion of purposes of state criminal punishment has been mention of the main purposes of state civil justice (to make the injured party whole) and of non-state dispute resolution (to restore
relationships and achieve emotional closure). Both of those purposes, which address needs of a crime’s victim, are not the major goals of our criminal justice system, although there is some provision for them. In addition to furnishing testimony helpful in convicting an accused criminal, the victim or the victim’s relatives may at the time of sentencing be permitted to address the court in the criminal’s presence, and to describe the crime’s emotional impact. As for making the victim whole, some state compensation funds for victims exist, but they are generally small.

For example, the most publicized criminal case in recent American history was the trial of ex–football star O. J. Simpson for the murder of his wife Nicole and her friend Ron Goldman. After a criminal trial lasting eight months, Simpson was found not guilty. But the families of Nicole and Ron then prevailed in a civil suit against Simpson on behalf of Simpson’s and Nicole’s children and of the families, and won (but had little success in collecting) a verdict totaling about $43,000,000. Unfortunately, cases of compensation being obtainable from a civil suit are exceptional, because most criminals are not wealthy and do not have significant assets that could be attached. In traditional societies the victim’s chances of obtaining compensation are increased by the traditional philosophy of collective responsibility: as in Malo’s case, not only the perpetrator but also the perpetrator’s relatives, fellow clansmen, and associates are obliged to pay compensation. American society instead emphasizes individual responsibility over collective responsibility. In New Guinea, if my male cousin is deserted by his wife, I would be angrily demanding from the wife’s clan the refund of the portion of her bride-price that I paid to acquire her for my cousin; as an American, I am glad not to share responsibility for the success of my cousins’ marriages.

A promising approach towards bringing emotional closure in some cases, to both a criminal not condemned to death and to the surviving victim or the dead victim’s closest relative, is a program called restorative justice. It views a crime as an offense against the victim or community as well as against the state; it brings the criminal and victim together to talk directly (provided that both are willing to do so), rather than keeping them apart and having lawyers speak for them; and it encourages criminals to accept responsibility, and victims to say how they have been affected, rather than discouraging those expressions or providing little
opportunity for them. The criminal and the victim (or the victim’s relative) meet in the presence of a trained mediator, who lays down ground rules such as no interrupting and no abusive language. The victim and the criminal sit face-to-face, look each other in the eye, and take turns relating to each other their life stories, their feelings, their motives, and the crime’s effect on their subsequent lives. The criminal gets a flesh-and-blood view of the harm that he has caused; the victim sees the criminal as a human with a history and motives, rather than as an incomprehensible monster; and the criminal may come to connect the dots in his own history, and to understand what set him on a criminal path.

For instance, one such encounter in California brought together a 41-year-old widow, Patty O’Reilly, and her sister Mary, with a 49-year-old prisoner, Mike Albertson. Mike was serving a 14-year prison term for killing Patty’s husband Danny two and a half years previously, by striking Danny from behind with Mike’s truck while Danny was bicycling. Over the course of four hours, Patty told Mike her initial feelings of hatred towards him, the details of her husband’s last words to her, how she and her two young daughters were brought the news of Danny’s death by a sheriff’s deputy, and how she was still reminded every day of Danny by such seeming trivia as hearing a song on the radio or seeing a bicyclist. Mike told Patty his life story of sexual abuse by his father, drug addiction, a broken back, running out of painkiller pills on the night of the killing, phoning and being rejected by his girlfriend, setting off drunk in his truck to check himself in at a hospital, seeing a bicyclist—and confessing that he may have hit Danny on purpose, in rage against his father, who had repeatedly raped him, and against his mother, who hadn’t stopped it. At the end of the four hours, Patty summed up the process by saying, “Forgiving is hard, but not forgiving is harder.” Over the next week she felt unburdened, empowered, and strong from having watched across a table her husband’s killer see the devastation that he had caused. Thereafter, Mike felt alternately drained, depressed, and uplifted by Patty’s willingness to meet and forgive him. Mike kept on his bedside table a card that Patty had brought him from her daughter Siobhan: “Dear Mr. Albertson, Today is the 16th of August and I will be 10 years old on September first. I just want to make sure you know that I forgive you. I do still miss my Dad, I think that’s a life-long thing. I hope you’re feeling OK. Bye bye, Siobhan.”

Such restorative justice programs have been operating for up to 20 years in Australia, Canada, New Zealand, the United Kingdom, and various American states. There is still much experimentation going on—e.g., as to whether the meeting should involve just the criminal and the victim or should also involve relatives, friends, and teachers; whether the meeting takes place at an early stage (soon after arrest) or at a late stage (in prison, as in the case of Patty and Mike); and whether there is an effort at restitution by the criminal to the victim. There are many anecdotal accounts of outcomes, and some control tests that randomly assign criminals to one of several alternative programs or else to a control group with no such programs, and that then evaluate outcomes statistically. Favorable results reported in cumulative statistical analyses of cases by some programs include lower rates of further offenses being committed by the criminal, less severe offenses if any are committed, a decrease in the victim’s feelings of anger and fear, and an increase in the victim’s feelings of safety and closure. Not surprisingly, better results are obtained in cases in which the criminal is willing to meet the victim, actively participates in the meeting, and realizes the harm that he has done, than in cases in which the criminal unwillingly participates in a court-mandated meeting.

Naturally, restorative justice is not a panacea for all criminals and victims. It requires a trained facilitator. Some criminals do not feel remorse, and some victims would feel traumatized rather than helped by re-living the crime in the criminal’s presence. Restorative justice is at best an adjunct to, not a substitute for, our criminal justice system. But it holds promise.

What conclusions can we draw from these comparisons of dispute resolution in states and in small-scale societies? On the one hand, in this area of dispute resolution as in the other areas to be discussed in succeeding chapters of this book, we should not naively idealize small-scale societies, view them as uniformly admirable, overstate their advantages, and castigate state government as at best a necessary evil. On the other hand, many small-scale societies do possess some features that we could profitably incorporate into our state societies.

At the outset, let me prevent misunderstanding and reiterate that dispute resolution even within modern industrial states already contains areas that utilize tribal-like dispute resolution mechanisms. When we have a dispute with a merchant, most of us don’t immediately hire a lawyer or sue; we begin by discussing and negotiating with the merchant, perhaps even asking a friend to contact the merchant on our behalf if we feel too angry or helpless ourselves. I already mentioned the many professions and groups within industrial societies that have their own routine procedures for dispute resolution. In rural areas and other small enclaves where everyone knows everyone else and expects relationships to be life-long, motivation and pressure to settle disputes informally are strong. Even when we do resort to lawyers, some disputants expecting an on-going relationship—such as some divorcing parents of children, or business partners or counterparts—end up using the lawyers to reestablish a non-hostile relationship. Many states besides Papua New Guinea are sufficiently new or weak that much of the society continues to function in its traditional ways.

With that as background, let’s now recognize three inherent advantages of state justice when it functions effectively. First and foremost, a fundamental problem of virtually all small-scale societies is that, because they lack a central political authority exerting a monopoly of retaliatory force, they are unable to prevent recalcitrant members from injuring other members, and also unable to prevent aggrieved members from taking matters into their own hands and seeking to achieve their goals by violence. But violence invites counter-violence. As we shall see in the next two chapters, most small-scale societies thereby become trapped in cycles of violence and warfare. State governments and strong chiefdoms render a huge service by breaking those cycles and asserting a monopoly of force. Of course, I don’t claim that any state is completely successful at curbing violence, and I acknowledge that states themselves to varying degrees employ violence against their citizens. Instead, I note that, the more effective the control exercised by the state, the more limited the non-state violence.

That’s an inherent advantage of state government, and a major reason why large societies in which strangers regularly encounter each other have tended to evolve strong chiefs and then state government. Whenever we find ourselves inclined to admire dispute resolution in small-scale societies, we
have to remind ourselves that it consists of two prongs, of which one prong is admirable peaceful negotiation and the other prong is regrettable violence and war. State dispute resolution also has its own two prongs of which one is peaceful negotiation, but the state’s confrontational second prong is merely a trial. Even the most horrible trial is preferable to a civil war or a cycle of revenge murders. That fact may make members of small-scale societies more willing than members of state societies to settle their private disputes by negotiation, and to focus those negotiations on emotional balance and the restoration of relationships rather than on vindicating rights.

A second advantage or potential advantage of state-administered justice over do-it-yourself traditional justice involves power relationships. A disputant in a small-scale society needs to have allies if his bargaining position is to be credible, and if he really wants to collect those cattle that the Nuer leopard-skin chief has proposed as appropriate compensation. This reminds me of an influential article about Western state justice, entitled “Bargaining in the Shadow of the Law”—meaning that mediation in states takes place with both parties aware that, if mediation fails, the dispute will be settled in court by the application of laws. By the same token, compensation negotiations in small-scale societies take place “in the shadow of war”—meaning that both parties know that, if the negotiation is unsuccessful, the alternative is war or violence. That knowledge creates a non-level playing field in small-scale societies and gives a strong bargaining advantage to the party expected to be able to marshal more allies in the eventuality of war.

Theoretically, state justice aims to create a level playing field, to offer equal justice to all, and to prevent a powerful or rich party from abusing her power so as to obtain an unfair settlement. Of course, I and every reader will immediately protest: “Theoretically, but …!” In reality, a rich litigant enjoys an advantage in civil and criminal cases. She can afford to hire expensive lawyers and expert witnesses. She can pressure a less affluent adversary into settling, by filing extensive discovery motions in order to drive up the adversary’s legal costs, and by filing suits that have little merit but that will be costly for the other party to contest. Some state justice systems are corrupt and favor wealthy or politically well-connected parties.

Yes, it’s unfortunately true that the more powerful disputant enjoys an unfair advantage in state justice systems, as in small-scale societies. But
states at least provide
some
protection to weak parties, whereas small-scale societies provide little or none. In well-governed states a weak victim can still report a crime to the police and will often or usually be heard; a poor person starting a business can seek the state’s help in enforcing contracts; a poor defendant in a criminal case is assigned a court-paid lawyer; and a poor plaintiff with a strong case may be able to find a private lawyer willing to accept the case on contingency (i.e., a lawyer willing to be paid a fraction of the award if the case is successful).

Still a third advantage of state justice involves its goal of establishing right and wrong, and punishing or assessing civil penalties against wrong-doers, so as to deter other members of the society from committing crimes or wrongs. Deterrence is an explicit goal of our criminal justice system. In effect, it’s also a goal of our tort system of civil justice, which scrutinizes causes of and responsibility for injuries, and which thereby seeks to discourage injury-provoking behavior by making everyone aware of the civil judgments that they may have to pay if they commit such behaviors. For example, if Malo had been sued for civil damages for killing Billy under an effective state justice system, Malo’s lawyers would have argued (with good chances of success) that the responsibility for Billy’s death did not lie with Malo, who was driving safely, but instead with the mini-bus driver who let Billy off in the face of on-coming traffic, and with Billy’s uncle Genjimp, who was waiting to greet Billy on the opposite side of a busy road. An actual case in Los Angeles analogous to that of Billy and Malo was that of
Schwartz v. Helms Bakery.
A small boy was killed by a car while running across a busy street to buy a chocolate doughnut from a Helms Bakery truck; the boy had asked the driver to wait while the boy ran across the street to his house to fetch money; the driver agreed and remained parked awaiting the boy on that busy street; and the court held that a jury should decide whether Helms Bakery was partly responsible for the boy’s death, through the driver’s negligence.