Crime & Punishment
A great deal of literary criticism and commentary has understandably been written about one of the great novels of the nineteenth century, Dostoyevsky’s Crime and Punishment (1866). The novel poses and explores conflicting moral dilemmas and forms of punishment, whether self-imposed or inflicted by others. I will, however, suggest that what is deemed to constitute morality is itself a moving feast. Both the judgements of any given act, how seriously it is viewed, and our ranking of punishments have changed. This is further confused by a dynamic understanding of what constitutes ‘serious’, ‘moderate’ or ‘light’ punishment. It follows that if judgement of both crime and punishment is fluid, the traditional dispute concerning the purpose of punishment as retribution or rehabilitation will reflect changing societal values.
‘Crimes’ Change and Vary
One of Michel Foucault’s greatest works, Madness and Civilization: A History of Insanity in the Age of Reason (1961), traces changing societal attitudes towards insanity, originally as supernatural possession, later as a crime, and now as a blameless medical condition. Something similar can be said about attitudes towards homosexuality. A crime in the United Kingdom until 1967, transition to full legal recognition of same sex marriage took just 46 years. At present around 30 countries recognise same-sex marriage, whilst in another 70 acts of homosexuality of any type remain a crime, and a handful of nations either have or are in the process of criminalising it.
The distinction between criminal or non-criminal behaviour is not always clearcut. Minor motoring offences are treated as non-criminal but become criminal if committed repeatedly. Those entrusted to enforce compliance with any particular behaviour can further blur the line between criminal and non-criminal. The transfer of power to local authorities, who often then employ private contractors to enforce parking and minor traffic restrictions, has led to a commonly held view that the primary motive for road traffic enforcement is as a cash-raising exercise, and that traffic offences should not be stigmatised as criminal.
Perhaps the most graphic illustration of changing perceptions of criminality and morality can be seen in the Black Lives Matter Movement. I find slavery abhorrent and am deeply uncomfortable with the appalling mistreatment of one set of human beings by another, of whatever colour. Nonetheless, I am also uncomfortable with judging absolutely those who profited from the slave trade in past centuries by today’s moral code, let alone characterising them as ‘criminals’, or seeking to erase them from history. The social mores of those times do not accord with modern ones, judging individually those who acted within them at that time according to contemporary norms is questionable.
None of this is intended to suggest carte blanche for committing crime. There is, no doubt, a core of activities consistently viewed as criminal such as murder and theft.
Punishments Change and Vary
Not only do crimes change, but so does the acceptability of specific punishments and the appropriateness for a particular crime, not just those regarded as appropriate for a particular crime. Changes to capital punishment are more subtle than simple abolition or continuation of it. The reduction of the range of crimes deserving capital punishment has narrowed even in the narrowing list of countries where it is still practiced. So too has opinion on how it should be carried out.
Disturbing to modern sensitivities, different forms of capital punishment were regarded as suitable for different crimes and for many centuries the execution of criminals was prolonged in order to increase their suffering. The Hebrew Bible specifies four different forms of capital punishment for thirty-six offences. In contrast, where capital punishment is still used, the debate is usually how to ensure the minimum amount of suffering prior to death – death itself being regarded as an adequate punishment. This change in discourse is, however, more recent than is often realised and vestiges of the old approach remain. The last Chinese execution of ‘death by a thousand cuts’, a particularly slow and unpleasant form of execution reserved for only the most heinous crimes, took place in the early 1900s.
Away from capital punishment, consider how separation from wider society as a form of punishment has changed. The once-common practice of colonial transportation has ended, but Russia and China both continue to send prisoners to distant and harsh destinations and enforced labour camps continue to exist. These have largely disappeared in the West, and even in those cases where imprisonment is intended as a punishment rather than fulfilling a role of crime prevention or rehabilitation, conditions are typically far less severe than in the past. Particularly problematic are prisons for those serving a life sentence and expected never to be released. One of Foucault’s other great works, Discipline and Punish: A History of Prisons (1975), argues that prisons and their design are heavily influenced by much wider statements of assertion of state power and classification of society, than a narrow focus upon the individual prisoner.
Fiscal rather than physical punishment has always existed, albeit in various forms. Modern punishment is often a fine or prison in the event of failure to pay. The assumption being that the former is less unpleasant than the latter. This is further evidenced by regularly reported cases of those found guilty who have the means to pay fines refusing to do so and choosing to serve prison sentences on principle – voluntary deprivation of freedom overpaying a fine being seen as a statement of protest. Should the size of a fine reflect only the seriousness of the offence or be targeted to equalise the impact upon those of unequal wealth? A common approach is to set fixed penalties for minor offences whilst allowing courts discretion to determine the amount for more serious ones, thus providing room for courts to consider the impact of fines on a case-by-case basis. In Switzerland, a more specific approach of inquiry into the offender’s means prior to setting a speeding fine is a possible procedure, whereas in the UK there is a broad tariff system, looking only at the degree of excess speed is more common.
The bulk of modern debate concerning the definition of a crime and response to it is governed by belief in punishment versus rehabilitation. The ethical dilemmas posed by Dostoyevsky are still relevant, but the details of how heinous the reader should deem the acts being perpetrated by the characters to be and the appropriate punishments must be examined through the lens of the time at which the act was committed. As the concerns investigated in Crime and Punishment arise through the medium of a fictional novel, it is tempting to see them as absolute, rather than requiring interpretation. I have sought to show that the definition of a crime, appropriate punishment, and even what constitutes punishment are time-dependent variables and functions of societal attitudes of the time. Opinions put forward on any of these topics should be qualified by acknowledgement that they are a function of societal norms of their time and contextualised within those.