Who Can Forgive?

Most of the disputants in the interminable debate over punishment endorse the notion that sinners ought to repent. But prisoners are remarkably resistant to any acknowledgment of the guilt which seems essential for penitence.

Can the offender forgive himself? If not, who can? The state? The community? The closest I came to an answer was suggested by an American film, The Mission, dealing with a doomed attempt by Jesuits to protect their Guarani converts from enslavement.

A mercenary slave, a violent, carefree brute, kills a loved younger brother in a jealous pique. because the killing was done in a duel, he is beyond reach of the law. But his guilt has pronounced an appropriate punishment: he has condemned himself to a slow death by starvation in a monastery. A Jesuit priest goads him to join a hazardous trip through the jungle. The destination? The lands of the same Indians he had kidnapped or shot during his slave-trading days. Seeing an opportunity to let his victims relieve him of his life, he agrees.

Dragging a heavy netted burden of the tools of his butchery roped to his body, he staggers through an impossible trip to the fatal destination. His companions, the Jesuits, make several attempts to persuade him to drop his burden and his guilt—but he fiercely refuses. They cannot forgive him—and he will not forgive himself.

The forlorn party arrives. The Guarani immediately recognize their former oppressor. One of them leaps forward with a knife, pulls back the man’s head, and he readies himself to slash his throat. The killer does not resist. Violating every expectation, he offers himself as a sacrifice. The would-be avenger is astonished. Then he finds the situation laughable. Instead of cutting the throat he cuts the rope which binds his man to his tormenting burden of weapons. The retired killer breaks into sobs. His would-be executioner, now his deliverer, casually strokes is hair, which he finds amusingly different from his own. Taking him by the hand, the Indians lead him to is village.

At least for me, the question, “Who can forgive?” seemed answered: The victim, and only the victim.

Threats or appeals by the Respectable seem unavailing. In Shaw’s Man and Superman, Juan, the repentant rake, unexpectedly meets his former victim, the lady Anna. Outraged by his disclosure that she too is in Hell, she attacks her seducer: “Juan, you have no honor.” In the words which have become a classic statement of the role played by militant virtue in the service of vice, Don Juan answers her: “You are welcome in Hell, Senora. Hell is the home of honor, duty, patriotism, and all of the other deadly virtues. All the wickedness on earth is done in their name. Where else but in Hell shall they have their reward?”1

Heinrich Himmler strikes a similar note in his remarkable words to the administrators of his death camps: “Most of you know what it means when a hundred corpses are lying side by side, or five hundred, or a thousand. To have stuck it out, and at the same time—apart from exceptions caused by human weakness—to have remained decent fellows, that is what has made us hard. This is a page of glory in our history which has never been written and never to be written. . . .We have the moral right, we had the duty to our people to destroy this people (the Jews) who wanted to destroy us.”2
The inner structure of the argument becomes visible. It is the wickedness of the evil-doer that gives the virtuous their iron mandate. Himmler concludes his exordium to his troops with this statement: “We Germans, who are the only people in the world who have a decent attitude towards animals, will also assume a decent attitude towards these human animals.”3

Criminal Justice as Living Theater

In the late sixties and early seventies I wrote prolifically. But a backward look over my publications began to trouble me. I had been writing about life and death with the detachment of a coroner. Kenneth Burke framed my dilemma: We have the drama and the scene of the drama. The drama is enacted against a background. The description of the scene is the role of the physical sciences. The description of the drama is the role of the social sciences. The physical sciences are a calculus of event; the social sciences are a calculus of acts. And human affairs being dramatic, the discussion of human affairs becomes dramatic criticism, with more to be learned from a of tropes than from a study of tropisms. The error of the social sciences has usually resided in the attempt to appropriate the scenic calculus for a charting of the act.4

In experiments conducted between 1967 and 1972 we invited judges, legislators, prosecutors, police officers, prison administrators, guards, and crime victims, to come as real prisoners to the same institutions to which they had remanded offenders. Only the “real” prisoners could reliably protect them. The friendships emerging from this strange alliance have lasted to this day. Conducted in eight states, the program was accounted locally successful in the changing attitudes and procedures. An Oklahoma prosecutor celebrated for his ferocity was convicted of a trumped-up charge in a jail-house kangaroo court and put in the hole. He emerged eight hours later an abolitionist. “I was Saul when I went in,” he said, “but I came out Paul.”

A Judge Confronts Himself

Judge Gwynn of North Carolina attended our first Criminal Justice Conference with thirty-six judges from thirty-five states—and eighteen of the wickedest convicts the state of Nevada could provide in the interesting year of 1967. It was our first test of a theory which suggested that offenders could be “reformed” only in a situation on which the correctors first reform themselves. I was in charge. I knew that the process would unleash passions hard to rein in. I knew that we could fail in two ways: pushing too hard, and not pushing hard enough. I choose the first risk. And by the fourth day it was clear that I had pushed too far.

The judges revolted. No one had ever talked to them the way those convicts and those Berkeley hippies had talked to them. They were particularly angry with me. And they were disappointed with the National College of State Trail Judges, which had foolishly risked its prestigious name on such an unworthy project. They packed their bags, and informed Judge Laurance Hyde, the young director of the College, that they were leaving the next day. Once again, I had gone too far. It was the worst professional disaster I had known.
At a predawn hour, before the taxis arrived to carry then to the airport, I asked for a meeting with the judges. I pleaded with them to tell me what I had done wrong. They would do that and more, they said. They would put me on trial. I was to sit with my mouth shut while each judge told me what was on my mind. It was the only deal in town, and I took it.

Judge after judge rose to denounce the process. Some denounced me and my co-conspirators. A few had mild but unmistakably damning words for the National College. Then one who had not yet spoken rose to his feet. An old man, he walked slowly to the podium. When he started to speak, my spirits fell even further. The voice was that of an old-time southerner. Everything I believed about the South in 1967 told me that I was doubly damned. A tape recorder was going. This is a transcription what Judge Gwynn said:

I don’t know of any people anywhere who are more dedicated to the service of their country than those who sit here. I don’t now of any. But the plight of our country, the sorry plight that we face now, lies more in the hands of the judges than in any other group. There are no people in the body politic who are more completely represent the sovereignty of the State than these who sit here. For through your fingers and your minds the sovereignty of the State makes itself felt on the life of the folks more directly and more acutely than any other agency.

And you can look back over the whole scope of our government: we have tremendous opportunities to avoid these dark clouds, these dark pictures we have witnessed here, and we have kept our mouths shut. Shut! We’ve had the power and we haven’t exercised it.

And if we are honest, intellectually honest with ourselves, we’ve got to admit that those things that bring progress, those things that bring reform, have come not from the judges, not from the judges! We get in a shell, and we stay there. There is one thing about the judicial mind, be they ever so dedicated. We get into a shell, an intellectual habit we call stare decisis. Follow the rule, God bless it, follow it. And we stay there!

This has been one of the most exhilarating experiences I’ve ever had. I only wish the people of this country, the layman, who are the power, would have been with us, to criticize us. Because we are not willing, and we have not been willing, to look beyond the prison gates. And if you analyze your soul, you know that’s so. I’m sorry.5

I have been a criminal all my life. Most of my prison time I deserved, because I was guilty. But there were other times I was innocent. I hated the law, and I hated judges. But I have just heard something that I never thought I would ever hear in my life. I have heard the law accuse itself. I here and now take back all the things I have thought and said about the hypocrisy of justice.
We convicts have not been good people. But we have always thought that you were no better, and that made us feel all right about ourselves. I was wrong. After today I can’t feel that way anymore.

If you can change, so can we.

Toward a Synthesis in Action

A controversy which convulsed medieval theology involved the relationship between Being and behavior. What was sufficient for salvation: faith and good works—or faith alone? Are we doomed to act out of our predetermined being or personality—or may we, by choice of a future line of action, become what we do? From the beginning, Catholic theologians grounded themselves on Free Will, asserting that Christian sinners could be saved by eschewing sin in favor of faith and good works. The supreme example was the conversion of Saul to Paul.

Calvin reversed the casual and temporal priority. Salvation and damnation were the predestined. One is not saved by one’s own hand, but the divine will and grace of God. The election was made before one was born, and was imprinted on each living soul. And it is that unalterable imprint alone that determines what we do. If we were not born damned, we cannot do good. If we were among the Elect, we would not do evil. And although God alone knew for certain, His ministers could pretty much determine where one came down. Doing fairly well in this world is one good sign. Serving and obeying God’s Church and its servants was another. Joining the witch-hunt was the best sign of all.

Much of the modern therapeutic psychology follows Calvinism. One’s behavior is preordained by the character of one’s psyche, which was jointly determined by one’s early environment. As the twig was bent, the tree would grow. But a scrub pine could not decide to become an oak.

It follows that criminals were born, not made. That being so, it is unlikely that they can unmake or remake themselves. Nor can we do it for them. The best we can hope is to identify them, and then protect ourselves by containing them where they can no longer threaten us. Correctional experts can best divine the extent of the inborn moral damage. The irreversibly bad and the dangerous can be identified mostly by their behavior, which tends to be repetitive, and by their disorderly, unproductive, wasteful, and wasted lives. One sign that one has not been born bad is the right choice of profession. Those dedicated to our social defense (police, prosecutors, correctional officers, judges, clergy) have clearly been born saved. It is therefore incorrect to accuse them of wrongdoing. It is not only mistaken, it is improper, because it supports the criminal element. “Those who criticize the police are little better than . . .”

And so it goes. Penal harshness is an article of faith among the terrified, the angry, the intolerant, the credulous, and the militantly devout. Its tenets are sworn to by the most orthodox of its practitioners, and by their parishioners, who toil to support their work—which is persecute the more troublesome among the already rejected. In American penal justice time has not stood still—it has turned back toward its Calvinistic roots. And science has not only failed to lift a finger, it has generally lent a hand. Even Becarria’s “deterrence” is unfashionable. Why try to deter anyone, if the die is cast? It is the will of God.

Dropping the Lower Limit: Wrongs Committed by the State
Of all the wounds inflicted by this most terrible of centuries, perhaps the gravest is the progressive toleration of more and more extreme forms of state ferocity. What was once beyond the pale has become commonplace. With the advent of genocide all earlier limits of collective atrocity have become obsolete—and comparatively less reprehensible. “Today,” asked Hitler, “who remembers Armenia?”
Consider the following escalation from insult to extermination:

Mistreatment of the Individual: Being insulted, being struck, being beaten, being tortured, being maimed, being assassinated.

Mistreatment of the Collectivity: Prejudice, discrimination, banishment, persecution short of physical injury, pogrom (Czarist type), partial extermination (Armenian type), total extermination (Nazi type).

Raising Rather than Dropping the Lower Limit

If dropping the lower limit of tolerated mistreatment has the effect of debasing relations all along the scale, then raising it should uplift the whole range. In our time the abolition of the death penalty, the ending of torture, the forbidding of corporal punishment, and the progressive shrinking of prison terms in regions like the Low Countries and Scandinavia have been accompanied by a marked increase in civility and social justice throughout the whole polity.

What was happening was the reverse of the trickle-down theory favored by many of the affluent who argue that philanthropy begins with the rich. It seems far more demonstrable that the general good wells up from the bottom.

One way to encourage the excessively powerful to negotiate is to oppose them. One simply sets one’s face against brutalization. This may require a strong measure of disobedience. Hopefully one’s disobedience can be civil. But by whatever means, judicial murder must be stopped: dead martyrs cannot liberate themselves. One simply—but firmly—says No. No to the rack, the pillory, the gallows, the gas chamber, the lethal injection. The suspect will not be denied his rights. Individual catastrophes of hunger, disease, and early death will not be compounded by miseries inflicted in the name of church, state, or “the People.” Magna Carta will prevail: “To none shall we deny, to none shall we delay, to none shall we sell the right and justice.”6 Karl der Grosse (Charlemagne) said it earlier, eight hundred years ago, dispatching his Missi Dominici from castle to castle in the glimmering false dawn of European rebirth: No one is above the Law. Rivers of blood and years of darkness divide us from that day.

For over thirty years we have been losing our struggle against the penal retrogression. But a World War II partisan leader, holding down with his uncaptured handful whole divisions of the conqueror, reminds us that it is only by the losers’ surrender that the victor seals his triumph. “So long as there were ten of us still fighting in the forest, the fascists had not won their war.”7 But the paradigm shifts must move us beyond old polarities of triumph and defeat. The bottom line must merge with the top. Each must win or most will lose.

Toward a Theory of Intermediation

There is need to break our mesh of old relevances. We must have a paradigm shift. But in a situation as desperate as ours any discussion had better be fundamental, vivid, and brief. Ours are conveniently expressed in metaphors:
We must go beyond reform. As Yevtsushenko said, one cannot leap half-way across an abyss.
An edifice built on a rotten foundation will fall, ruining other dwellings in its vicinity.

One cannot invent the electric light by improving the gas lamp, or the steam boat by renovating the sailboat.
Our intervention must base itself on equity, reciprocity, and justice. We cannot restore anyone we have trapped between submission and resistance.
The offender has an obligation to make good the harm and grief he caused. He cannot ask for mercy without annealing his victim.

The crime victim has a right to reparation. His good will is indispensable for any improvement in the lot of the offender.
“Correction” must no longer base itself on the man-hating ideology that motivated the wrongdoing. Unbridled, the fury we unleash rebounds against us: the watchdog unlearns obedience and bites the master.

In deliberately inflicting pain on the offender, the victim embraces the ideology of his oppressor. Facing the brute who fractured his skull in Selma, Alabama (1965), the Reverend James Bevel said, “Sheriff, there is one honor I will never do you. I will never be like you.”

Any model of intervention must fundamentally alter the prevailing relationship between offenders and the rest of us. In abusing the victim, the offender impaired his own feelings of common humanity with the victim. In abusing the offender we dehumanize ourselves in turn.

Participating in a process of role reversal seems to offer a way toward reconciliation. When we voluntarily place ourselves in the situation into which we have put the offender, we come to realize, perhaps for the first time, its morally self-defeating impact. We experience remorse, and we repudiate what we have done. Evidence suggests that this example helps the offender, perhaps for the first time, to take the standpoint of the victim toward himself, and repudiate his own wrongdoing.

We sketch out our scheme in two tables. The first outlines a variety of relations between offenders and agents of social control. The second suggests a model of transition which moves from the present situation toward a better future.

We are dealing at bottom with the fateful consequences of three different attitudes toward the Other. We can do things to him, in which case he becomes an Object. We can do things for him, in which case he becomes a Dependent. We can do things with him, in which case he has the opportunity to become an Agent. Whatever the content or intent of the action, it is the relationship between the actors that is crucial—and that defines the difference between domination, dependency, and self-realization in the political, economic, and social realms, as well as the interpersonal.

Transcending a Catastrophic Success

In the six years following Judge Gwynn’s rescue of our first workshop (1967), we tested the workshop process eight times in seven states. In each case the results were similar. Most participants—including the convicts—moved from a position of expressed helplessness—blaming “the system”— to a point in which each accepted a measure of responsibility for what was happening and for what they ought to do about it. But this attitudinal revolution affected only those present. Most of those watching from the outside and then meeting their returning colleagues—intent on translating their discoveries into action—concluded that the “converts” had been brainwashed. One after another, the reformed reformers were shot down. It took us six years to discover that we had invented a virtually perfect way to prevent reform—by destroying the careers of the reformers. And we repeated, like a mantra, that cynical and despairing aphorism, “No good deed goes unpunished.”

In attempting to aid offenders and the offended to restore one another within an enlarged circle of mutual accountability and concern, we had traveled a well-worn historical track. From William Penn to Becarria and Howard to their followers who created the “rehabilitative” institution, the unintended result has been the same. Nothing had been more fatal to progress in criminal justice than the good intentions of reformers. Now, today, we have returned to honest vindictiveness and vengeance. The discrediting of “rehabilitation” has transformed the penal institution to a place where the citizens can vent their fury on their more forthright abusers. Armed with every device of technological disablement, including capital punishment, the dungeon has returned to haunt us, harden us, and reduce us to the level of our poorer, cruder victimizers.

We had to find a better way: a way which eschewed publicity and promises in favor of quiet, more gradual achievement. For all our biases against “institutions,” it now seemed essential to institutionalize the process within the correctional culture and the collective culture. The prison would not fall down, and in the face of the fury of crime victims and their friends (that is, all of us), it could not be torn down. A way would first have to be found to reconcile the offender with the offended. To facilitate that, we would try to transform the prison itself into a school for the community—a place where citizens and convicts could meet, share one another’s experiences, and then work toward a better solution.

The times are against us. Walter Benjamin’s “storm of Progress” is blowing, but it is not blowing from Paradise. And it may blow more away than the lives of convicts. The triumph of the nation-state, already celebrated by mass civil murder in this most genocidal of centuries, is reaching out against the lives and liberties of more and more of us. In former days we did our destruction in the name of God. Now we do it in the name of the sacerdotal State. It seems an unworthy god to die for.

“What Really Should Be Done with the Criminal?”

Penology has much concerned itself with the question. Politics thrives on it. The concern is real, but the dilemma is a fraud. There is mystification—but no mystery. Individually and collectively, we have always known precisely what we wanted to do with any offender standing before us, and, for the most part, we have done to that particular offender exactly what we wanted to do.

Offenders we esteem and admire more than we esteem ourselves we forgive—except if they have hurt others we love, in which case our punishment, if any, will be in precise proportion to the difference between our feeling for the wrongdoer and our feeling for the victim.

To those we value as much as we value ourselves, we extend the same treatment which we would want for ourselves. If we offend a person we value, we want a chance to earn forgiveness by making it good. This is called reconciliation, and it is facilitated by wholehearted restitution. If the victim of the offender we value is of no account to us, we are likely to share the offender’s attitude—which is, typically, to blame the victim and take no action. This, for example, is what we usually do when a valued police officer harms a person who is of no concern to us.

Only to those we do not value do we mete out punishment, especially if their victims are persons we esteem. If, on the other hand, their victims are as valueless as they are, we ordinarily do not bother with expensive forms of punishment. This explains the typically minimal sentences meted out to the minority members who slay other minority members. Unless the killings offend our aesthetic sensibilities by becoming public nuisances, we are usually content if they continue to sting one another in the dust.

But one does not help the victim merely by harming the offender. Revenge hardens the avenger and justly relieves the wrongdoer of any obligation except to himself. And cruelty shifts the burden of guilt from the wrongdoer to the victim. Why answer the injury inflicted by the criminal with one we inflict on ourselves? Why recruit an army of brutes to defend us against monsters? Ungovernable forces of social defense have always posed a graver threat than crime.8

Endnotes: 1. George Bernard Shaw, Man and Superman (New York: Random House, 1927). 2. Helen Fein, Accounting for Genocide (Chicago: University of Chicago Press, 1979). 3. Ibid. 4. Kenneth Burke, The Philosophy of Literary Form (New York: Random House, 1957). 5. Transcript of tape in the author’s possession. 6. King John at Runnymede, 1215 7. private communication 8. At the height of the Roman Republic, torture was restricted to barbarians and slaves: it was against the law to inflict it on a citizen. With the coming of the Empire, torture became the norm in all criminal investigations. During the current supremacy of the American Empire, the CIA was authorized to train the security forces of “friendly” dictatorships in the repression of “subversions” at all costs and without limit. (See “CIA Says It Knew of Honduran Abuses,” New York Times, 24 Oct. 1998.) Within a generation our agents were tolerating or abetting the murder of American citizens abroad and at home.