The cook, the bank robber and “just punishment”

A day or so ago I posted about the cook at Auschwitz who may be prosecuted for being an accomplice to murder despite the fact the fellow is an old man. At about the same time, I posted about Shon Hopwood, the bank robber, and his wonderful story of redemption. The pairing of these posts was not entirely accidental. While the cases are wildly different, there is an important commonality that lawyers and laymen alike should understand about the federal criminal justice system, and sentencing in particular.

18 USC § 3553(a), the sentencing statute that guides federal judges, sets out a list of sentencing factors (goals). Among others, the statute requires the sentencing judge to select the sentence which provides “just punishment for the offense.” (My emphasis.)
Trust me when I write that great thinkers have written lofty thoughts about the meaning of “just punishment.”* Hopwood represents to me the notion that just punishment contemplates redemption (hope), and the cook represents to me the notion that punishment which is just also includes retribution (vengeance). Now, please realize these two words are only one of several factors that federal sentencing judges must consider when imposing a sentence.

You’re smart. Draw your own conclusions. If you care to, I’d love to hear about those conclusions.

RGK

*E.g., Michael Tonry, Editor, Why Punish? How Much?: A Reader on Punishment, at Chapter 13,  beginning at p. 207 (Oxford University Press 2011) (essay by Andrew Von Hirsch).

16 responses

  1. probably a bit off topic, but my “conclusions” are that the biggest problem with the criminal justice system is that despite being presented with an endless variety of individuals and circumstances, judges are unnecessarily hamstrung by having essentially only two options at their disposal when sentencing: (1) incarceration or (2) some form or probation/supervised release.

    sometimes the most “just punishment” (in my opinion) would involve neither of these options. i will concede, however, that it is certainly easier (in the short term, at least) to simply throw them all in prison or just send them back to the same environment that produced the socially unacceptable behavior.

  2. Noob,

    My colleague Warren Urbom agrees with you. Indeed, starting in the 1970s Warren used a variety innovations and alternative to incarceration such as requiring anti-trust offenders to take business ethics courses and fund ethics program at Universities. Those sentences did not fare well on appeal.

    All the best.

    RGK

  3. Your honor, I’d like to know your thoughts on the older practice of allowing the jury to sentence those defendants found guilty.

    Also, given the current state of mass incarceration in the United States, and the criminalization of so many acts that just about every person has broken one law or another, should not the practice of jury nullification be viewed in the light that the Supreme Court once viewed it, as elicited in the case of Georgia v. Brailford, 3 U.S. 1 (1794)? My reading of Sparf v. United States, 156 U.S. 51 (1895), is that the trial Courts are not required to inform the juries of their power to nullify. How did we end up at a place where making a nullification argument to the jury can be grounds for a mistrial?

    By no way am I asking you to respond in a manner that may be unethical. I’m more interested in an educational response, and in whatever other kind of response you are willing to give.

    Thank you.

  4. Redemption (from a hope for change for the better) and punishment (being held to account) are the core of treatment in psychiatry. A fundament of the treatment, in fact, is that the patient cannot improve his condition without being held accountable for his actions, even when those actions are, in some sense, beyond his control because he’s insane.

    It’s that accountability that gives him a set of rules he can follow (even if only by rote because he cannot understand their purpose and so cannot generalize–or internalize–their meaning), and it’s the ability to see that accountability and respond to it that gives the patient the capacity to begin to change his behavior for the better.

    The same holds, it seems to me, for criminals. They need both an opportunity to improve–redemption–and an understanding of an accountability that’s more expensive to them than their continued misbehavior–punishment–else they have no possibility of returning to society as productive members.

    All the rest of the froo-froo in the sentencing statute strikes me as just variations on that theme, with the intent of fleshing out means of achieving that return to society.

    As noob and your colleague intimate, there are lots of ways of achieving that redemption opportunity and satisfying that punishment need.

    Eric Hines

  5. Eric,

    Given your background you won’t be surprised, but others might. That is, some of the very best thinkers on the proper meaning of “just punishment” have been psychiatrists and psychologists as compared with lawyers and judges. Perhaps that’s because those highly trained and well-educated mental health professionals spend their lives dealing, on very intimate terms, with the human condition.

    Thanks for your insightful comment. All the best.

    RGK

  6. Dear Anonymous,

    As you know, we went away from jury sentencing in the early history of our country. There are many reasons for that, chief among them being that it is hard to avoid sentencing disparity (treating similar offenders who committed similar offense similarly) if a jury sentences. On balance, I would retain judicial sentencing as the norm.

    As for jury nullification, you have correctly stated the modern federal law. That is, there is no such thing, legally speaking, as jury nullification. The prohibition against jury nullification presupposes that 12 jurors should not have the power to trump the will of the people, represented by their legislators. I agree with that reasoning, if only because jury nullification seems undemocratic to me and, if carried to the extreme, jury nullification can lead to lawlessness.

    All the best.

    RGK

  7. What I find interesting about both of these ideas is that they’re focused primarily, though not exclusively, on the criminal. That is, the sentence should redeem the criminal or revenge (who?) upon the criminal. I suppose both of them do relate somewhat to society and, at least retribution, also to the victim, but as framed here, it seems that your focus is on doing something to the criminal.

    The other part of sentencing is the effects on the victims (again, retribution is big here, as well as any recompense if it’s a crime where that’s reasonably possible) and on society. I’m thinking mainly of deterrence, which speaks to society at large and potential criminals in particular, and protection of society at large from the criminal. It’s debatable how effective different lengths (and, as noob mentioned, types) of incarceration/punishment are at achieving these goals, but interesting nonetheless.

    Does sentencing the cook achieve deterrence? It seems like the answer is probably no – the notion of the banality of evil suggests that no one starts out thinking of themselves as feeding Nazi soldiers exterminating Jews but rather that it happens by increments. “Protection” is especially interesting with regards to Mr. Hopwood – he was shielded from society during his term of incarceration and thanks to his marvelous achievements, he’s hardly likely to commit those or other criminal acts ever again.

    I realize that I have no conclusions whatsoever, only more questions, but I think my point coming was something about the subject of sentencing factors: the criminal, the victim(s) and society.

  8. Dear chocolatetort,

    Great point. You strike at the nut of the problem.

    There are other worthy sentencing goals beyond the one I focused on–just punishment. “Just punishment” theorists would say that those sentencing goal are subsets of “just punishment.” But, I think that’s a stretch, particularly for judges who lack the theoretical training required to untangle and then consistently apply complex sentencing theories.

    Interestingly, the federal Sentencing Commission acknowledges that no one sentencing theory is to be preferred, at least under the statute that Congress gave us. Thus, we have lots of theories. For example, you incapacitate people like bank robbers for a decade or more so that they can’t harm others. Or, you generally deter potential bank robbers by selecting a long sentence for the instant offender that will, in turn, make potential offenders think twice about the advisability of robbing banks.

    With multiple theories in play, however, we must recognize several things. First, such a scheme may look, and may in fact be, incoherent and unpredictable. Second, with broad goals to apply, the more discretion you give judges the more incoherent sentencing writ large may become. Third, if you care about treating similar offenders who commit similar crimes similarly, broad and conflicting sentencing goals, coupled with expansive judicial discretion, will likely cause widely unequal sentences.

    Frankly, there are times when I hear your words, or something like them, bouncing around my head. Arguably, we might be better off to concentrate on the victims and our society and mostly forget about the offender. AND THEN, along comes Shon Hopwood.

    All the best.

    RGK

  9. As long as you can sort the seed from the chaff. Some of the most egregiously useless, touchy-feely claptrap masqueraded as “punishment/rehab” comes from mental health professionals, too.

    Also, the idea of using community service both to make restitution (at least to the community if not the proximate victim) and to teach the miscreant a useful trade came from a judge.

    And, just to make the tittle on this, some of the highest suicide rates occur among psychiatrists and judges.

    Eric Hines

  10. Eric,

    I was tempted to tell you to take pill. But, of course, you are right.

    One of the nastiest things I ever did as a lawyer was to take a three-day deposition of an Ed.D. in school counseling in the most aggressive manner imaginable. This gal had done “therapy” with two little (5-year old) girls, convincing them that our client, a teacher, had raped them. By the way, she insisted on being called doctor and I consistently disregarded her demand. In any event, I relished this woman’s figurative destruction during the deposition because she was completely incompetent. And, I didn’t feel the slightest remorse because she was so damn dangerous.

    All the best.

    RGK

  11. Well, I actually meant the bit about the community service as a compliment. [g]

    As to your handling of the “counselor,” that’s probably why you’re the lawyer and now judge, and I’m not.

    Eric Hines

  12. Rich, this is rare, but the “cook” case is too much for me to wrap my head around right now. If come to any useful thoughts, I will share them. But I have taught philosophy of law, written on it, and written on the puzzles created by Nazi informers who were acting lawfully under their monstrous regime, but not in accordance with any semblance of natural law (in which I happen to believe as an outer boundary to positive law), I want to be careful with my thoughts.

    But allow me to share a story that haunts me to this day.

    At Creighton (not through my doing, but that of my my friend and colleague Mike Kelly) we had the chief prosecutor in the Eichmann case, Gabriel Bach, speak at Creighton.

    For those who don’t know (and they should be forgiven, because it’s horrible stuff, and until this event I didn’t really know the details) Eichmann was the bureaucrat chiefly in charge of the Holocaust. Eichmann was discovered by the Israeli authorities in 1960 living in Argentina under an assumed name. Though I am not happy that he lived 16 years in relative comfort, the timing was almost perfect.

    The Israeli authorities captured him in Argentina and took him to Israel, which (justifiably) claimed universal jurisdiction over war criminals. (in today’s world, we call these “extraordinary renditions”.)

    I say the timing was perfect, because 15 years was long enough to remove it from the emotive reactions immediately after the war, but close enough that almost all adults could remember it.

    The trial was before the Israeli Supreme Court. Of the many monstrosities committed by the Nazis, this one was hard for me to even comprehend. In Auschwitz, Jews were forced to write postcards to family members and friends inviting them to “safe” Auschwitz where they would be protected from the horrors of the war and the work would be light. In fact, in the sign leading into Auschwitz said “Work Will Make You Free.” The idea was that they’d work the Jews until they starved or nearly so, and then put them into the gas chambers. Of course, there were a few post-pubescent Jewish girls that they took to be gang raped by Nazi officers before being gassed.

    Not surprisingly, Bach had a hard time finding a witness for the “postcard” ruse. But he eventually found one. This man still had the postcard so he looked to be a great witness, but Bach (under the enormous strain of this trial) had little chance to prep him.

    So Bach put him on the stand. And he testified to the following. He had gotten the postcard, and he and his wife, son (13) and daughter (6) had arrived at Auschwitz on the train. His wife and his daughter were sent to the left. There was considerable debate about the son and he was sent to the left, with the encouraging words from the Nazi bureaucrat: “Run along boy, catch up with your mother.” So he did. The line to the left was to the gas chambers. To the right (which is where the father was sent) was to the forced labor. But the father testified to an interesting detail. The week before, he had bought his daughter a red raincoat. He could see her in the distance wearing the raincoat with her hand in her mother’s with his son running up to catch them. It was the last glimpse he ever had of his family.

    This testimony was a surprise to prosecutor Bach. He had not heard it in this detail before. He had a six-year old daughter. He had bought her a red raincoat the week before. So Bach elicited this testimony from the witness and (unsurprisingly) was unable to speak for the next two minutes. He made a show of shuffling his papers at the podium, but could not not speak. The Justices made hand-waving motions at him to indicate that he could should continue, but he could not. He finally belched out: “No further questions.”

    Eichmann was hung by his neck in 1962.

  13. a bit of a non sequitur, but the book “Hunting Eichmann” by Neal Bascomb is a very interesting read. you realize that, as in most significant events, the outcome would have been very, very different if not for the dedication and sheer mule-headedness of a small handful of people.

  14. Pat,

    I am old enough that I vividly remember the capture of Eichmann, his trial and the glorious day when they hung him. I have nothing else worth writing save to say a heartfelt thank you.

    Rich

  15. Noob,

    After many years in the State Department, serving, ironically in the Arabic speaking world, my cousin converted to the Jewish faith upon his retirement. That said, unless my cousin’s suspicions about our family’s immigration history from Germany turns out to be true, I have no roots that are traceable to the Jews. Nonetheless, I have had this compulsion all of my life to study the holocaust. In turn, this causes me to write that your comment is not a “non-sequitur.” Indeed, my hero is Simon Wiesenthal. His help in catching Eichmann is only part of the reason that I venerate Wiesenthal, but it is a very important part. Thanks for the reminder, and I urge others to read the book too. Here is the publisher’s description which I think is pretty accurate:

    When the Allies stormed Berlin in 1945, Adolf Eichmann, the operational manager of the Final Solution, shed his SS uniform and vanished. Bringing him to justice would require a harrowing fifteen-year chase stretching from war-ravaged Europe to the shores of Argentina. Hunting Eichmann follows the Nazi as he escapes two American POW camps, hides out in the mountains, slips out of Europe on the ratlines, and builds an anonymous life in Buenos Aires.

    Meanwhile, concentration camp survivor Simon Wiesenthal’s persistent search for the monster gradually evolves into an international manhunt that involves the Mossad, whose operatives have their own scores to settle. Presented in a pulse-pounding, hour-by-hour account, the capture of Eichmann and efforts by Israeli agents to smuggle him out of Argentina to stand trial bring the narrative to a stunning conclusion. Based on groundbreaking new information and interviews, recently declassified documents, and meticulous research, Hunting Eichmann is an authoritative, finely nuanced history that offers the intrigue of a detective story and the thrill of great spy fiction.

    Thanks for commenting.

    All the best.

    RGK

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