Anders Breivik’s sentence for killing 77 people in Norway on July 22, 2011 is outrageous. He was deemed sane and sentenced to serve 21 years in prison “in a three-cell suite of rooms equipped with exercise equipment, a television and a laptop.” That’s 100 days of posh prison time for each person he murdered, with a legal release possible at age 53. Life is cheap in Norway.
The news agencies explained that such a sentence
is consistent with Norway’s general approach to criminal justice. Like the rest of Europe . . . Norway no longer has the death penalty and considers prison more a means for rehabilitation than retribution.
They explained that “many Europeans” consider America’s criminal justice system to be “cruelly punitive.” And the blog post I am now writing, naturally, would fall into the category of vindictive.
Do you see the error in this? C. S. Lewis did.
He wrote an essay in 1949 exposing the tyrannical folly of “The Humanitarian Theory of Punishment” (Essay Collection and Other Short Pieces, London: HarperCollins, 2000, 698-705). This theory reigns in Norway today.
Lewis explains that treating criminals not with a view to punishment, but only with a view to remediation and deterrence is the end of justice and the seedbed of tyranny. It is dehumanization with a gentle face.
It is essential to oppose the Humanitarian theory of punishment, root and branch, wherever we encounter it. It carries on its front a semblance of mercy which is wholly false. That is how it can deceive men of good will. (704)
He explains that the moment you disconnect punishment from what a person deserves, you disconnect it from justice; because “the concept of Desert is the only connecting link between punishment and justice.” (699)
Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a ‘case.’ (699)
If a criminal’s sentence does not have to accord with what he deserves, it does not have to be just. At that point we are all at the mercy of those who are in power to call anything we do a crime and give it any therapeutic or remedial solution they choose, including gas chambers and medical alterations. “The Humanitarian theory of punishment will put in their hands a finer instrument of tyranny than wickedness ever had before.” (703)
In fact, the news story explains that, after his 21-year smack-on-the-hand for killing 77 people, Breivik “could be kept there indefinitely by judges adding a succession of five-year extensions.” There it is. The issue is not what he deserves. The issue is not justice. The issue is power in the hands of judges who will decide if he has been “rehabilitated” sufficiently, and if his detainment has served the community to a suitable degree.
This is the seedbed of tyranny. To be sure, there is a place for rehabilitation and deterrence. But only under the humanizing sway of justice. Lewis explains the relation:
I am ready to make both protection of society and the “cure” of the criminal as important as you please in punishment, but only on a certain condition; namely, that the initial act of thus interfering with a man’s liberty be justified on grounds of desert. . . . It is this and (I believe) this alone, which legitimizes our proceeding and makes it an instance of punishment at all, instead of an instance of tyranny — or, perhaps, of war. (“On Punishment: A Reply by C. S. Lewis,” Essay Collection: And Other Short Pieces, 707)
And what of mercy? We are Christians. We don’t treat each other merely on the basis of justice, but of mercy, since we have been treated that way by God in Christ. Yes. And the Christian — the biblical — concept of mercy toward wrongdoers only exists in relation to justice. Showing mercy, in relation to wrongdoing, means treating someone better than they deserve.
If the concept of ill-desert, and with it the concept of justice, is lost, mercy ceases to be. It is replaced by sentiment and caprice. As Lewis observes, “The essential act of mercy was to pardon; and pardon in its very essence involves the recognition of guilt and ill-desert in the recipient.” (704)
There may be good reasons for commuting or mollifying just sentences, but those reasons, if they are merciful, will give an account of themselves before the bar of precious and unimpeachable justice.
Mercy, detached from Justice, grows unmerciful. That is the important paradox. As there are plants which will flourish only in mountain soil, so it appears that Mercy will flower only when it grows in the crannies of the rock of Justice; transplanted to the marshlands of mere Humanitarianism, it becomes a man-eating weed. (704)