The Code of Hammurabi
Around 1700 BCE, Emperor Hammurabi of the Babylonian Empire carved into stone one of the first known sets of laws, the Code of Hammurabi. Permeated by seemingly absurd ideas, this early display of legislation is one of the best illustrations for retributivism. For example, with code 196 (“If a man put out the eye of another man, his eye shall be put out”), Hammurabi’s code became the origin of the popular saying, “an eye for an eye.” Similar to code 196, many of the laws established by Hammurabi reveal a central concept to retributive punishment: proportion. Even though the codes carry a very literal judgment of proportionality, they fully convey the retributive belief that a criminal should face the consequences of his offense in accordance to the harm he/she has caused. Despite some of its shocking ideas, the code presents yet another crucial and very sensible part of retributivism: impartiality. With the underlying idea that criminals “deserve” to be punished, lies a very thin line between a system of retributive justice and a revenge culture; having a selection of pre-established neutral laws is what sets these two apart.
“'In return for hostile words, let hostile words be paid!' –
in exacting what is due, Justice shouts that aloud,
and 'In return for bloody blow, let bloody blow repay!'
'For the doer, suffering' is a saying three times old." (Hughes, 306-314)
These words from the second play of Aeschylus’ Oresteia greatly resemble code 196 from the Babylonian Empire. In this selection of three tragic plays, which unveil the curse of the House of Atreus, Aeschylus conveys the revenge culture that prevailed in 5th century Greece. A revenge culture might also share the notion of punishment in proportion to crime, but in it, the punishment for reprehensible behavior lies in the hands of each person. It is a “system” of personal, and emotion-driven actions. When compared to the Oresteia, the Code of Hammurabi becomes a very dull piece of history.
Here is a brief synopsis: It all starts when Thyestes seduces his brother Atreus’ wife, causing Atreus to cook and serve Thyestes’ sons to Thyestes, who then sets a curse on the House of Atreus, proclaiming that each generation would devastate the other. Said and done. Only one of Thyestes’ sons survives, Aegisthus, who cultivates an intense hatred towards his cousin Agamemnon, Atreus’ son. So when Agamemnon leaves for the Trojan War, Aegisthus becomes a lover to his cousin’s wife, Clytemnestra. Together they murder Agamemnon, as Clytemnestra resents him for sacrificing their daughter so the Greeks could win the war. But the couple is murdered by Clytemnestra’s two children, who wish to revenge their father’s death.
Evidently, this Greek tragedy is very different, and much more cruel than the Code of Hammurabi. But they share the same fundamental mentality: a criminal “deserves” his/her punishment. In its extremely dramatized essence, the Oresteia embodies this ideal and shows how the notion of punishment for the sake of punishment can escalate into a vindictive and aggressive mindset.
From Body to Soul
These violent patterns, as seen in the previous chapter, repeated themselves for centuries. Still pervaded by the retributive view of inflicting suffering upon a criminal, justice in the 18th century was established by arbitrary acts of cruelty. In Discipline and Punish, Michel Foucault recounts the quartering and burning of an offender to illustrate what was “one of the most popular spectacles of eighteenth-century France” (Sheridan ix). As the Age of Enlightenment took down the absolute monarchies, it also brought about the respect for man, based on his most innate aspect of being human. By the 19th century, the enforcement of justice was transitioning from physical punishment, like public executions and torture, to incarceration.
The French philosopher claims that two new concepts were added to the penal system, “measure” and “humanity.” With works by philosophers like Beccaria, new standards of justice were slowly being established. Ideas regarding fair trials, the severity of sentences and the effectiveness of punishment started to be discussed. And, in this midst, incarceration rose alongside utilitarianism. “Less cruelty, less pain, more kindness, more respect, more ‘humanity’” (Foucault 16), these were the goals they shared. However, Foucault highlights that punishment never “ceased to be centred on torture” (15). Evidently, to serve as an effective tool against crime, to actually alarm the human desire for self-preservation, incarceration needed to do more than “simply” take away liberty. Its effectiveness also relied on the “rationing of food, sexual deprivation, corporal punishment, (and) solitary confinement” (Foucault 16).
Nonetheless, much criticism arose from this new, allegedly lenient, system of punishment. Led by their retributive minds, people did not agree with housing and feeding criminals. They wanted more; they needed a tangible form of punishment. For them, “a condemned man should suffer physically more than other men” (Foucault 16), not acknowledging that justice was changing its focus from the body to the soul (or the essence, or the spirit, or simply the mind; in accordance to whatever each person believes to be inside a human being). The lack of acuity to analyze the outcomes of this new system, has a created a problem that still haunts our penitentiary system: “Perhaps it has been attributed too readily and too emphatically to a process of ‘humanization’, thus dispensing with the need for further analysis” (Foucault 7). In comparison to its preceding forms of punishment, incarceration is clearly more humane. However, its torture of the soul should not be underestimated. The caging, the labeling - the animalizing - of human beings should not be taken lightly.
Beccaria said that “uncertainty” is “the most cruel tormentor of the miserable” (7). The constant fear, the leeriness, the unpredictability, the seclusion, all unites in this “tormentor.” Phyllis Tabron, the mother of a teenager who spent 6 months in solitary confinement said, “If I put my son in a room for six months and I wouldn’t let him out, I’d be arrested. That’s torture. No one can take that kind of isolation” (Phyllis Tabron “PressTV-Americans protest US prison violations”). No punishment is as dangerous as the one aimed at the soul.
This abuse of the soul, utilitarians would argue, is but a necessary consequence to the least cruel form of punishment that has ever been attained. Nonetheless, the penitentiary system started its decay from its utilitarian goals as the torture of the soul went from an unavoidable consequence to a crucial need. Regarding the emergence of prisons, Foucault claimed that punishments “become the most hidden part of the penal process” (9). Incarceration started to serve as a means of taking the guilt from authorities. While proclaiming to pursue the utilitarian ideals of a humane and effective form of punishment, the judiciary counted on the torture that was hidden behind bars. In The Philosophy and History of Prisons, Professor Jocelyn M. Pollock states, “‘You are nothing!’ is a theme that prison inmates live with during the course of their imprisonment, and the mental toll that prison takes on its population is very difficult to measure” (Pollock 9). Inmate violence, abusive guards, precarious structure; it all subtly unites to intensify the anguish of prison.
Tool of Social Control
The United States is, by far, the country with the largest prison population in the planet. Carrying less than 5% of the world’s population, America shockingly holds 25% of global prisoners. Today, there are over 2 million people under incarceration, an outraging number when compared to other countries with much larger populations.
Fig.1. Personal chart by author. 2015.
The severity of sentences in America is striking, especially when noticing America’s leading position against countries with a history of harsh laws and punishment, like China and Russia. In thirty years, the U.S. prison population has increased by 500%, whereas the crime rate has only decreased by 15%.
Fig. 2. Source: US Violent Crime Rate and Incarceration Rate, 1990-2011. 2013. By Paul Waldman.
An article by The New York Times tries to unravel the reason for such discrepancy, “Americans are locked up for crimes — from writing bad checks to using drugs — that would rarely produce prison sentences in other countries. And in particular they are kept incarcerated far longer than prisoners in other nations” (Liptak “U.S. prison population dwarfs that of other nations”). But in The New Jim Crow, Michelle Alexander exposes the problem of mass incarceration in much simpler terms: “The lack of correlation between crime and punishment is nothing new” (7). The American penitentiary system is no longer a utilitarian system of correction, but a “tool of social control” (Alexander 7). The delicate punishment of incarceration has been thrown around almost as if arbitrarily.
In 2011, the Supreme Court declared that Californian prisons were so crowded they failed to provide sufficient medical and mental care, infringing the 8th Amendment to the United States Constitution: Excessive bails shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. The greatest reason for such overcrowding was the Three Strikes Law passed in 1994. The law states that if a former convict commits a second felony, his/her sentence shall be doubled. If this person commits yet another crime, the conviction is of at least 25 years to life. The motives behind this drastic change, however, were based on more than crime and recidivism rates. In a time when the American government was dealing very severely with crime, this law arose the interest of many institutions and its initiative was substantially funded.
Michelle Alexander also illustrates the government’s erratic punishments with the War on Drugs, one of the greatest contributors to mass incarceration. She presents several pieces of evidence to support her argument that the war on drugs was set up by the government, during a time when drug crimes were actually decreasing. Among the evidences, is a statement from the CIA, confirming that they used to smuggle drugs into the United States. Most of these drugs would then go to poor black neighborhoods. Even though research shows that people from different ethnic groups are equally involved with drugs, Michelle presents the unsettling fact that “in some states, black men have been admitted to prison on drug chargers at rates twenty to fifty times greater than those of white men” (Alexander 7).
This inconsistency of a system of punishment driven by biased decisions was long ago predicted by Cesare Beccaria, as he listed the possible problems that could ruin the effectiveness of the penitentiary system. He said, “a multitude of laws that contradict each other, and many which expose the best men to the severest punishments, rendering the ideas of vice and virtue vague and fluctuating and even their existence doubtful” (Beccaria 24). In 2003, 18-year-old Cameron D’Ambrosio faced a conviction of 20 years after he posted on Facebook rap lyrics that contained a bomb “threat.” The same sentence of 20 years was received by Justin Miller in 2014, for choking his girlfriend to death. Luckily, D’Ambrosio was found innocent. If he had been convicted, the young boy would spend 20 years of his life in prison, alongside men like Miller. Sentencing a young adult to such a long time of incarceration because of an Internet post completely diverges from the utilitarian principle of applying punishment based on its efficacy to prevent crime. Instead, it reflects the American government’s intent of sending a message against terrorism. When the system of justice changes its regulations accordingly to economic and/or political interests, how are the citizens supposed to assimilate what is the right conduct? Should they simply get caught in the fluctuating political system, where the “undesirable” are disposed of, and lives are wasted, because of the message a president wants to pass (or whatever other excuse that can be translated into “money”)? Again, men are like children; they should be led by example.