Justice: a reason, or an excuse?

Does capital punishment serve the ideal of justice?

Throwing a double or paying fifty pounds. Remember what game that rule comes from? You get three chances at throwing the double, then you have to pay (we can’t allow you to stay in jail too long, because if you do we can’t take your money off you). The rules to the family game Monopoly are remarkably, for the relative simplicity of the game, paralleled by life itself.

How you land in jail in the board game is either by being sent there by Chance, or by being in the wrong place at the wrong time (viz. the Go To Jail square when your turn finishes). (I recall you can also be sent there for rolling three doubles in a row, which I suppose is a speeding offence). The ways of landing in jail may, in real life, seem to be somewhat broader, but they’re not. Whilst most of us will skirt with greater or lesser distance the acts of felony set down in our statutes, we do so only by giving a narrow definition to the felony of theft and, for the rest, including for the lesser categories of crime, as the result of a degree of Chance. On that score, some of those who do in fact land in jail are there owing to mischance, or bad luck.

Landing on Go To Jail may also be regarded as bad luck, but it’s a very special sort of bad luck. Chance is being caught for something you did but didn’t reckon on being punished for. This second kind is where you are punished for something you didn’t even do, simply ending your turn between Piccadilly and Regent Street.

Now, it’s unlikely that prosecution authorities ever leafed through the telephone directory in order to choose those they wanted to accuse of crimes. The people they prosecute tend to live in the area, or work with the accused or have some relationship, by having been, been seen, been associated with the victim. And, especially the gregarious amongst us, will likely have a good many persons within our circle. That said, the fact of merely having some sort of connection to a given person is not of itself enough to inculpate you with regard to events affecting that person (the reverse of which premise formed the basis of the films Strangers on a Train (Alfred Hitchcock, 1951, with Farley Granger) and Throw Momma From The Train (Danny DeVito, 1987, with Billy Crystal): that not being there can exculpate you from a crime.

So, there on a Monopoly board you have the sum total of any criminal jurisdiction. Chance determines whether you will be caught for the crimes you commit; otherwise, on every turn of the circuit, there is a possibility you could end up being in the wrong place at the wrong time. And those players who never land in jail (other than Just Visiting)? With them we are never too sure whether they’re criminals or not. What we do know is that one of them, and one only, ends up the winner.

Thank goodness, I hear you sigh, that true criminal justice is somewhat more complex in its operation. Its complexity stems pretty much from the obvious statement that the prosecution will hardly leaf through the telephone directory in order to identify those whom it accuses. Criminal prosecution is no random matter. It is a very precise matter and, because of its precision, it requires great expertise. From detective to forensic scientist to district attorney and Crown prosecutor to the bench itself, and onward into the penitentiary system with its prospects of probation. It may seem cynical to put it into such words, but crime is a business for far more than just the criminals. And, just as there are criminals who do not engage constantly in criminal activity, there are their opponents in the criminal justice system who do not always engage in the acts that contribute to fulfilment of their job description. Whilst policy on the part of the criminal is generally predicated on simply getting off scot free, policy on the part of the criminal’s opponent is a far more variegated picture. Into it flow notions of job fulfilment (i.e. doing what you’re there for), job promotion (doing it better than expected), job perpetuation (doing it so that people will want you to do it again—elected sheriffs) and mere existence (what would probation officers do if we abolished probation?). What these aspects start to introduce into criminality is the idea of measuring crime. That, in order to fight crime, a society needs a construct made up of roles and responsibilities, whose effectiveness and efficiency can best be tested by way of measurement. Some things have the measurement they have, and other things have a measurement that can be made to fit what it needs to be.

When we measure the length of a piece of wood, the wood is the wood and the measurement is whatever the measurement is. And from the measurement we know whether the piece of wood is suitable or not. But a justice system is not a piece of wood, for a piece of wood does not, in and of itself, endeavour to be suitable. A justice system is a piece of wood that strives to be one thing, and then to be another, and then yet another and, even if it says so, it never strives for all of them at the same time. Or, if it does, it is engaging in an exercise of futility.

Long, long ago, about 500 B.C., the Romans had their aediles and vigili, but they had no police. Whilst these Roman officers of state had their income and their duties, their main job was the protection of the state, the maintenance of public order, the quashing of large-scale rebellion and uprising. They were not especially charged with the investigation of crime at an individual level. Strange to relate, in terms of crime prevention, ancient Rome was a far more anarchical society than our own is: each for himself. The Latin tags that get bandied about in courtrooms the world over in our modern age belie the state of the law as it existed in Roman times: as if that were the paragon to which we should look back to inspire our modern ideas of iustitia. (In a way, they do: law in Rome was for the rich and the state, and law in modern times likewise.)

The four-word banner slogan painted on the sides of police cars (to serve and protect) is a little like the blue heritage plates affixed to ancient premises throughout Scotland: Robert Burns slept here. The former prompts the response: yes, but serve and protect who? and the latter the response who with? Behind both of these one-liner proclamations lies a one-liner witticism, and a one-liner truth: never do owt for nowt unless it’s for thassen, as they say in Yorkshire. (Never do anything for nothing unless it’s for yourself.)

And, with that, we land at the prime mover in everything we do, whether as individuals or as institutions, as companies and as nations. We feather our own nests. The outcry against some of the measures being taken by the US administration right now go hand in hand with accusations of not caring, being unjust or unfair to deserving recipients of government lavishness. But I don’t think that the prior administrations which introduced these programmes and schemes thought they were being lavish. There is a benefit, so the government thought previously. It’s just the new government doesn’t see the benefit, so they’re cutting the programmes. Anyone who wants to believe that the US government previously engaged in unbounded acts of philanthropy is deceiving themselves. It’s just that the indirect benefit of its benevolence wasn’t always spelled out in words of one syllable.

Besides, we do do much for nothing that is not for ourselves. Don’t we? There must be oodles of things we do for others that are not for ourselves. Positive myriads. The problem is, aside from plonking a coin into a collection tin on flag day, I can’t actually think of any. I once acted in the cancer play Tim Firth’s Calendar Girls, at the end of each performance of which members of the crew stood with collecting buckets at the exits, to encourage audience members who’d just forked out for a theatre ticket to donate further to Cancer Research UK. The director would tell us the amounts collected and what good work that was. Well, good work is good work, but what was the work we were supposed to be doing?

We would get more if we shook the bucket, but we’re not allowed to do that. If we stood with no buckets, we would collect nothing. We could simply place a bucket next to the door and ask people to contribute. I don’t know if we ever tried that, and, if we did, whether it reaped the same as an actor standing with the bucket. But an actor standing shaking a bucket is a step too far. So, what was the aim of the collection? To give the actors something to do after curtain-down? To raise money for charity? The director had a deep personal attachment to the cause, so of course, this was the aim. But the aim, which was to establish the charity as a valid cause, in the hopes of turning that to an act of generosity, had to be tempered in this case by the notion that it is one thing to prick a conscience, but something else to intrude upon the decision-making process that is thereby initiated. If Justice needs help in arriving at a just solution, and the resultant justice does not spring spontaneously from the mere suggestion that it should, is it then no longer justice that she serves, but some perversion?

Even the things that we do do for others and not at all for ourselves, are tainted with saving face, averting embarrassment, like people hunting for loose change for the after-play charity collection. Luckily, there is a catch-all face-saver: I pay my taxes. We equate paying our taxes with some act of charity: even if they are not entirely paid freely without constraint or duress. And then we rail at those who receive benefits, hand-outs, governmental generosity, and argue that we should vote for the governments that, of our generous gift of alms, will direct as much as possible into the hands of the most deserving: i.e. ourselves. Well, we paid it, didn’t we? We resolve the conflicting taxpayer duties and benefit-recipient’s entitlements either with notions of philanthropy (that what’s good for your heart is good for your well-being) or of investment (he who is supported in his hard times may yet support us in ours) or of ultimate balance (the social security we pay will eventually be the social security we draw). And each of these rejoices in the name of justice, even if each of them is quite different from the other.

There would appear to be no more equanimous institution of government than justice. She stands as a goddess atop the domes of courthouses, bearing a sword (as the admonition of punishment to come, as also of the authority of him who will administer it) and scales (symbolising the balance with which punishment will be meted out) all whilst, generally, blindfolded (in such a manner as has no regard for who the parties are, but rather for what are their rights and obligations). It is true that Justice had a devoted temple in Rome (where, I do not know) but, as a much later addition to the Roman pantheon, scholars tell us that she was never fully admitted as a thoroughbred deity—was pretty much regarded as window-dressing by the Romans. It is the modern age that has made her to a deity. Augustus it was who instituted Justice as a goddess, in the time when Jesus lived. She was derived, as were many Roman deities, from a Greek goddess—Themis, and Dike—and ultimately even from the religions of the Nile (Ma’at and, later, Isis, who was a sort of deific conglomerate).

What’s interesting is the mythology that surrounds this mythology. The scales: evenly balanced so that everyone is treated equally, are not meant to be evenly balanced. They are the scales in which are weighed up the substance and arguments of the two sides in a dispute. The decision can only be rendered by a judge if the scales actually tip in favour of one or the other of them. The scales are not intended to remain balanced, it is their imbalance and the determination of that imbalance that is the very function of justice itself. Then, the blindfold. This is seen as a mark of the fact that justice has no regard for wealth, position or influence. She is impervious to these things. Well, if the weighing up of arguments is already starting to stretch a fiction, this takes the biscuit. The blindfold was not a feature of Justice in ancient Rome itself, having come as a 16th century satirical addition indicating how blind Justice is to the injustices that are practised in her name (the earliest known blindfolded Justice is the Justice Fountain, in Berne, Switzerland, which still stands today—1534). By being blindfolded, she doesn’t even see which way the scales are tipped, in favour of one party or the other, so how would she know who’s right and who’s wrong? Well, what we can’t see in these depictions is someone whispering into her ear how she should decide. What she then decides is enforced through the might of a sword, which, sooner or later, is going to give someone the idea of enforcing law by means of a sword, be it just or otherwise.

Statues of Justice are, I suppose, like any other statue: they present the subject in an admirable, humbling fashion, inspiring high-minded aspirations and keeping bronze-work sculptors in a job. For the rest, they’re handy things, to tear down when there’s a revolution.

What is inspiring about Lady Justice, as she is depicted in statuary around the world, is the idea that she represents not just the law, but the idea of the law as a body of rights and obligations that are founded in moral rectitude. Despite the philosophical distinction between law and morals as concepts, what Justice does is represents their fusion in terms of the law’s application, even of the moral standing of any given law. Ultimately, what that comes down to is whether Justice does in fact set our hearts to aspire to the ideals of impartiality that we know reside somewhere within all of us; or whether it draws a satirical veil over its own recognised failings, as it appears to dupe us into believing in a righteousness that can exist only somewhere in the clouds above her looming form, as she draws our momentary attention upon entering the building over which she presides.

Back in ancient Rome, the vigili and aediles formed a fairly hotchpotch collection of officeholders, for which there was no unified code, no uniform, no centralised organisation. What’s perhaps most telling about them is that we know their function was public order (more so with the vigili than the aediles), not to protect and serve the citizen individually. The first organised police forces, in a form even vaguely recognisable to modern eyes, date from the very late 18th and early 19th centuries. By the 3rd century, there were no aediles in Rome, their original functions having been subsumed under the responsibilities of the emperor (in terms of looking after temples), the praetor (organising games) and prefects (in terms of urban order). In Rome, outside the cities, even outside Rome generally, law and order was a matter for the army for pretty much the ensuing 1,500 years, and even keeping those two ideas separate has posed its ideological difficulties in certain places. Italy has its Carabinieri, literally rifle-bearing men-at-arms, whose duties differ from those of the Polizia. France is an interesting case, with its Police locale for purely communal matters, Police nationale for state-wide responsibilities within a given area, and Gendarmerie, which has a far more military function. France does not have community policing, a legacy of several centuries of social upheaval and revolution. Its police are there to put down uprisings, first and foremost. Britain does, but at what point does a peaceful protest, for which the police require to attend, become rowdy enough to qualify as an uprising, for which the army is more appropriate? More in point, when does preventing protests against Israeli home policy, as supported by US foreign policy, turn from being a police matter to one for the National Guard?

Though we may try to equate functions of our modern society to those of ancient societies, determining their comparability often comes down to looking at one aspect that is a constant between them: money.

Aediles are depicted in William Shakespeare’s play Coriolanus (which I also played in, by the way), in a manner that is not entirely historically accurate (it can be dangerous to take Shakespeare as a precise depiction, when what he was after was a jolly good play). They are the aediles responsible for the granaries (known as cereales), who came to be appointed only under Julius Caesar in 44 B.C., rather than the 500 B.C. when Caius Marcius Coriolanus actually lived; Cicero also talks about their responsibility for grain supplies in his De Legibus, written somewhere in the mid-first century B.C., around the time of Caesar.

What is interesting in looking at aediles in ancient Rome is how the post waxed and waned according to not just the responsibilities attached to it, but the qualifications for the office and the profitability of the acts entailed in executing the office. The games which they had to organise were from the inception within their remit. They had to organise them and ensure they ran properly, and all out of their own pocket. Heavy expenditure brought with it fame and notoriety, and curried favour among the population. But it tended to restrict applicants for the post to the wealthy. Being an aedile was a stepping-stone to much higher office in the Republic, so that aedileship was seen less as selfless public duty, and more as a means of ingratiating oneself with those who might yet shower the donor with greater benefit in return.

This somewhat anecdotal meander down the pathways of ancient history serves to illustrate one thing: that the debate about what law enforcement is there to do, what justice even is, and what the aims are of incarceration (or of any form of punishment for that matter) beset the Romans just as much as they beset modern societies. Perhaps a major distinction between Roman law and order and modern law and order is that the Romans sought no propaganda aim. They may have been meticulous in their analysis of function and duty, but once these were established, then that was that. They called a spade a spade. Even if they had them, I doubt very much whether the aediles of ancient Rome would have painted the words servire et protegere on the sides of their chariots. Not because they would seek no propaganda benefit from doing so, but because it would quite simply not have been true.

Those who operate within criminal justice systems must have the calling to want to serve. Without that, they lack the first prerequisite. With it, they already earn our honour and respect. Painting it on a car door does not constitute fulfilment of that prerequisite, however. They must receive the reward that is commensurate with the dedication given to the role, and the risk that is incurred in its execution. And they must be given incentive that will cause them to aspire to higher office and greater responsibility, without at the same time enabling them to evade the responsibility of the office whilst reaping its benefits. What is more they must be held to a high standard of answerability for their errors, misjudgments and failings. For their misdeeds, they must answer as criminals.

When police brutality, prosecution impropriety and judicial corruption go unpunished, and are even covered up, in the mistaken belief that dissimulating the criminal acts of those whose job it is to catch criminals will foster, and not detract from, public trust in law enforcement, or when they are openly declared in the certainty that public trust is something the miscreant doesn’t crave (now, if not at the relevant time), then the whole definition of justice becomes nothing more than a set of malleable rules, just like those that govern the game of Monopoly, where distracting the banker to grab a wad of fivers is perfectly legitimate game play. Well, can you point to the rule that prohibits it?

From the ancient past now on into the near future, and a spree. One at which the families of victims will have a front-row seat. We are told by administrators, but not by family members themselves, that watching first-hand the death of someone who caused you to be a victim brings closure: the southern-state killing spree of death-row prisoners. This article in The Guardian gives you the schedule, in case you want to follow things on their heels. Six executions in ten days. The governor of Louisiana announced its own, of Jessie Hoffman, the first in 15 years, just the day after President Trump happened to be sitting next to him at a football game in New Orleans. The proximity of the announcement to the game is about as great as the proximity between the two men at the game, and the reason for that, I suspect, is to be able to evidence to the other party that the suggestion has been duly complied with, even if it knocks on the head any potential defence that the two are in no way linked.

Accessing details of death sentences passed in places like Saudi Arabia or China can pose issues. America is not top of the league table in terms of such punishments. It ordered 25 and executed 24 in 2023. Saudi Arabia (3+ sentences, 172 executions), China (undisclosed), along with India (120 sentences in 2023), Nigeria (246+), Bangladesh (248+), Egypt (590), Vietnam (122+), Thailand (123) all beat the US on some score or another. Maybe there is still a lot to do to get the, actually, futile death penalty abolished worldwide, but, in America, we have plain view of the mistakes that are made in convictions, undisclosed evidence, breaches of the Brady rule, manipulations of the Brady rule, outright flouting of the Brady rule (by which it is unlawful for the prosecution to withhold evidence that would materially affect the outcome of a trial), all in pursuit of the statistic.

There are countries of which the British king is monarch that retain capital punishment, even though the UK itself long since abolished it. I wonder what kind of thinking underlies such disparity in ethical approach. If the answer be that it is rarely, if ever, applied, then the answer should be then why not abolish it? It is like the nuclear weapons argument: we have them as a deterrent to stop others doing harm to us. If that worked, then justice would truly be served by such draconian punishment. But all the evidence points to the fact that fear of death at the hands of the executioner does not inhibit the evil of the criminal. What life sentencing offers that execution does not is a cash saving (no prisoner is more expensive to maintain than a death row inmate), a chance at reform (one that’s not infrequently grasped) all with no effect on crime rates. It would open the way to the correction of miscarriages of justice, which also are not infrequent; and it would take sentencing policy out of the circus arena that is American politics. And none of those would be a bad thing.

Capital punishment is said to serve justice. Just as is war, for that matter. Insurrection. Tax. Clipping the neighbour’s overhanging apple tree. Justice is served by all of these things. It is that concept, free from moral and ethical considerations, deep in our hearts, and which we parade at appropriate junctures for others, not ourselves, to see. But, the justice system, that’s something about which each of us has his or her qualms, parts of which operate as they should and parts of which need working on, but which is nevertheless the best that we can expect given the difficulty of distilling into the mix all our personal preferences for the perfect system. Which is exactly what the ancient Romans thought, and what the Saudis think, and the Chinese, and the British, and the rest of them. We can unite on the definition of a metre, but not on the definition of justice? Maybe justice is one thing the Romans didn’t ever do for us.