The punishment fits the crime
And can overlook its motivation
A boy appears in juvenile court, accompanied by his father. The boy is charged with shoplifting. The judge turns to the father and asks, “Sir, have you any explanation for why your son took it upon himself to steal this pad of paper from the stationer’s store?” The father replies, “No, sir, I have not. It is inexplicable to my mind. For he has as much paper as he could ever want, which I bring to him from my office.”
Image: this image is AI generated.1
When I was a member of Glasgow Junior Chamber of Commerce, a fellow member told me once about someone at his quantity surveyors’ firm. One of its most feared staff members was a gorgon of a woman who jealously guarded and kept locked the stationery cupboard. All stationery was distributed by the gorgon, but only once a humble application had been made to her. Pretty much on bended knee. A replacement pencil would be handed over upon production of the current one, shown to have been sharpened down to a barely holdable stub; paper was distributed according to a ration system: what you need and no more.
Presently the time came for the gorgon to retire and champagne corks popped, not only to celebrate a life of commitment to quantity surveying, but also, if she but knew it, to celebrate the departure of the source of much fret and worry across the partnership, from junior clerk to senior partner.
The moral of the tale lies in what happened next. Nothing much. Stationery supplies became freely accessible to all staff members, who went and fetched pencils and paper and paper clips and folders and labels and ink without let or hindrance, to their hearts’ content. And their hearts were contented to exactly the same extent as had been the case when the gorgon stood sentinel over the paper stock.
So, which of these stories holds the greater moral lesson: fathers shouldn’t be surprised their sons steal if they themselves steal with impunity from their employers? Or standing guard over stationery just makes you stationary but doesn’t save paper?
The moral lessons seem clear, and yet they aren’t. For we assume we see the moral lesson, without having made due enquiry. We are policemen and prosecutors, and no criminologists.
Substack has a “dashboard”, which tells me how many subscribers I have, whether they’re up or down, the number of “30-day views” (and whether they’re up or down) and the “30-day open rate” (and whether that’s up or down). It’s a statistician’s pleasure park. But it more or less passes me by, because what interests me more is what people say, or don’t say, about what I write. One intelligent response is worth a thousand likes. Well, a couple.
One post, which I put up on 29 March 2023 is very, very long.2 It’s by far the longest article I have ever written (besides my university dissertations), and it was written in the course of a single day (not that the dissertations were). It’s about rape, and it starts by talking about rape as mentioned in a Shakespeare play, written somewhere around 1600, about events that took place 185 years previously. That is the length of time that rape has been around as a weapon of war: for ever.
Non-consensual sex has since then been outlawed by statute. But, in 1415, it was the king himself who was threatening it as a weapon of conquest.
Henry V’s reasoning in his parley with the Governor of Harfleur nonetheless makes sense. For there is no rape in the play. It is the threat of rape that convinces the Governor to relinquish the city to the English. Violence is a trait that can not only be displayed, but borrowed for the purposes of strategy.
King Henry V has gone into English history as a hero who procured a miracle. In the play’s first scene, Ely and Canterbury discuss the wayward youth of the Henry IV plays and are astounded at his maturity by the start of Henry V, Canterbury nonetheless noting that miracles are ceased. No they weren’t, Your Grace—Agincourt was yet to come. However, Henry is not recorded in schoolbooks as the king who threatened rape to procure a military victory.
Policing is the art of catching culprits. Sometimes that’s us: “Oi, I saw that!”
Prosecuting is the art of proving they did it, of turning accused into convicts. “I put it to you …”
And criminology is the art of figuring out why they did it. Agatha Christie’s heroes always used criminology to detect culprits, but there’s no criminology to identifying someone from CCTV. There is a little bit of criminology in policing and prosecution, but much of what criminology discovers about motives and motivation goes unused in day-to-day routine police and prosecution work.
If it had a bigger role to play, Wayne Couzens would have been detected much earlier. And two dead Swedes would be alive, at home in Sweden, instead of having been gunned down in a Brussels street.
In the course of my studies, I have spoken with many criminals. Habitual criminals have an inured exoskeleton, designed to keep intruders away. If anyone knows there are bad people about, they do. Piercing that can be a difficult and dangerous process, because the subject needs to be sure in himself (they were all male) that what he reveals to you will go no further. It is for this reason that I gloss over the crimes committed by the people I mention in that article.
You may ask yourself why a lawyer, such as I, would want to examine the motivations behind crime. Defence counsel rarely if ever ask that, and rarely if ever want to ask that. They believe that they cannot adequately defend an accused whose guilt is confirmed to them. Where it is confirmed, then they must ask for motivation, because that may even exculpate the accused.
But, if we so often ask the question “Why? Oh, Why”, few of us interest ourselves for the motivation for a criminal act. Theft. Murder. Rape. Drug dealing. Embezzlement. Adultery.
Adultery. Still, in places, a criminal offence, now generally just a ground for divorce. What separates ordinary, upstanding, law-abiding citizens from criminals is two things: a trellis of iron bars. And an ounce of chutzpah. To English-speakers, that is courage. To Yiddish-speakers, it’s what the English call cheek. Here, it’s both. It just depends on the viewpoint.
“Do you take this man, woman or non-binary person to be your lawfully wedded wife, husband or non-binary partner, to have and to hold, to love and obey, in sickness and in health, for richer and for poorer, from this day forth, till death you do part?”
In Flash Gordon, Ming The Merciless marries Dale Arden, who is Flash Gordon’s girlfriend. In that ceremony, Ming is asked if he wants to take Dale as his mistress of the hour, to which he replies, “Of the hour, yes.” It’s all good, clean, schoolboy fun. Not.
Well, Flash Gordon is clean schoolboy fun, but the official marriage ceremony—it’s not. These are vows, given before God and, even before they’re taken there’s a law in place saying, “You can say to God: ‘Sorry, but I don’t love him/her/them any more.’” And, in fact, there’s not much difference between that and what Ming said. At least Ming knew the limits of his attention deficit. People who marry should declare either “until I get bored of him” or “and I hereby renounce the rights to divorce granted by law.”
The first might obviate the whole question, by making him think again. And the second would keep divorce courts empty to deal with bankruptcies instead, which are lagging behind a bit.
You see, we enter into contracts of marriage assuming a meeting of the minds, and then can back out because we were mistaken about how met our minds were. But it’s not so easy when you try to back out of other contracts where the mere idea that it was ever a meeting of the minds is simply laughable. Shotguns are rare at weddings, but not in consumer contracts.
Anybody, be they a kid, a burglar, a shoplifter, a murderer or an ordinary member of the general public has at some time been a criminal, if they have conceived a criminal act and assessed the likelihood of escaping detection and, therefore, punishment.
Anybody.
So, chutzpah and bars are all that separate holy people from criminals. Not that they will go to jail for it. Because the law requires more than thinking about a crime. It requires the act itself. With God it’s different, admittedly: with God, thinking about the crime IS the crime. What saves you with God is simply regretting your thought. But working out that you’d be caught if you actually did the act is not regret. So, the law would forgive you. God wouldn’t.
While one hesitates to generalise, I suspect that anyone who is forisfamiliated will have at some time done precisely that: formulated a criminal act and decided against it, or even done it. And, you can deny it all you wish, but each of us has at some time skipped over an amber when we knew we should stop, tipped over the speed limit, dropped litter, or nicked a biro from the office.
You can exculpate yourself from punishment for a crime by lying, by adducing contrary proof, by deciding not to do it because it’s not feasible, by deciding not to do it because it’s wrong, or by running like hell after you’ve done it.
But the reason you thought of it in the first place, you can never exculpate yourself from. That will remain with you, wherever you go, whatever you do, whoever you are. Until you ask God.
Can you resist a Pickup bar? looks at why men rape. Its conclusion is applicable to many, many criminal offences. Some of which, I’m sure, you will have thought about doing at some point.
Happy reading (it’ll take a while). Meanwhile, here’s a song about holy people and criminals.
Can you resist a Pickup bar?
This article doesn’t in its entirety deal with the subject on which it homes in at the end. In a way, it circles overhead in languid trajectories across the sky, and some may even wonder if it ever lands. It does.
Pickup is a chocolate biscuit from the German company, Leibniz.
The image was AI-generated. Of eight attempts, none produced an image of a boy who was not black. The text input is the first paragraph of the article.
I was going to make a side remark about my 29 March article: that, because it is so long, no one has read it. In the past month, however the readership figure has tripled. Thank goodness for the dashboard. But no one as yet has commented, and that is a good thing. Because thinking isn’t writing.