Liberal criminologists and others who believe that levels of punishment are, in general, excessive can be discomfited by events that prompt outrage. Notably, murders, rapes, violence against women, children and other vulnerable people, hate crime, cruelty to animals and no doubt other dreadful crimes properly distress and instinctively enrage us. Are we, then, to set aside our usual liberal inclinations and arguments? We may be generally sceptical that weighty punishment is the right response to most crimes, but are we to suppose that deterrence, retribution or even vindication of the victims’ suffering somehow function differently for the gravest of crimes? If we follow this line of reasoning, it may betray our failures of imagination and empathy in recognising the pain and misery that are often caused by much more mundane offending. Grave crimes can be a Trojan horse, invading our usual concerns about penal excess.
What then is the fitting reaction to grave crime? Where should our outrage lead us? Martha Nussbaum (2016), whose wise and thought-provoking reflections are not nearly as well known to criminologists as they should be, draws on Aristotle’s insights in her analysis of anger. Anger is always a response to a wrong (actual and / or perceived): there is no place for anger where there is no wrong and wrongs are done by somebody. (People do get angry with objects, but this is infantile and embarrassing.) And it involves a wish for some kind of retributive payback. Nussbaum argues that while anger can have an initial value in signalling that a wrong has been done, it is deeply problematic morally. It may galvanise people to action, ‘But once they get going, they had better not follow anger’s lure all the way to fantasized retribution’ (2016: 39). For payback represents a magical thinking that imagines that the past can in some way be undone.
Nussbaum will not allow that anger is ever justified, using the expression well -grounded anger to refer to circumstances when a wrong has indeed been done and our anger accurately directed at the person responsible. The immediate and instinctive reaction of anger may be a shot of adrenaline, but then needs to be channelled and to evolve into emotions of a different kind and pointing in other directions. She writes of a transitional anger that moves from
This is outrageous. Someone must pay.
to
This is outrageous. It mustn’t happen again.
(It is worth noting that this is a common development in restorative justice conferences. An initial anger felt by the victim often gradually gives way to constructive thoughts about the offender’s future.)
Yet there is a third route, perhaps, moving rather towards
This is outrageous. We must do what we can to help and support the victim(s).
The outrage is no less, but the focus has shifted. The familiar path from outrage to anger to condign punishment could be displaced by a path from outrage towards careful thinking about how to reduce the incidence of offending or (and / or) what must be done to meet the legitimate needs of the victim. Once this is recognised, opponents of severe punishment need not be discomfited by an awareness of the dreadful harms that some crimes can cause. We should not seek to minimise the pains of crime; rather we must be prepared to look this in the eye and yet still reject that the weightiest punishments must follow.
Even if we still think a place remains for anger, despite Nussbaum’s arguments against, we should be wary of its influence on penal practice. Some immediately translate their compassion for victims into anger towards offenders and demand the heaviest punishments. And often this is all that they demand. As Nussbaum puts it (drawing this time upon the Roman poet Lucretius) ‘They’re so deeply sunk in payback fantasies that they’d prefer to accomplish nothing, so long as they make those people suffer.’ (her emphasis) Yet it is simply not the case that severe punishment is what victims themselves always want – and certainly not all that they need.
For individual victims themselves and those who care about them, Nussbaum warns that anger is ‘especially poisonous when people use it to deflect attention from real problems that they feel powerless to solve.’ It is grief in particular that she has in mind: it is easier to indulge anger than an overwhelming sense of sadness and loss. Anger instils a sense of control, but this is a delusion. Even if this anger could ever be satiated – for example, parents’ reactions to the murder of a child – there is still the loss and the grieving to experience. Anger is well-known as one of the stages of grieving, but it is a stage that people need to go beyond: to remain locked in anger and punitive obsessions leads to further pain.
There is some evidence to show that retribution does not always bring the satisfaction that some victims anticipate:
‘Anger thoughts can [thus] be a vicious cycle; the more people think about them the angrier they get, and the angrier they get, the harder it is to think about anything else. … People’s lay theory seems to be that revenge is a cathartic act that will bring them closure, allowing them to stop thinking about the precipitating event, when in fact that course of action might keep their attention on the event and prevent them from coping in other ways.’ (Carlsmith, Wilson and Gilbert 2008: 1317).
Ours is a culture that encourages victims to be angry and mass media may encourage us to join them in that anger in compassionate solidarity. Yet it has been suggested that this response can not only block grieving, but can prolong and aggravate the pains of the crime. Lazy and cynical journalism can take opportunities to remind the victims of grave crimes of their suffering by finding reasons to put the offender(s) on the front page, but the conceit that this constitutes championing the victim needs to be challenged.
There are other aspects of anger to note. First, few people believe that they act at their best under the influence of anger – even when they regard their anger (as Nussbaum would not) as entirely justified. Second, it is inherently given to excess: when people ‘boil over’, there is no telling where the spillage may end up. Third, expressed anger provokes a reaction from its target. This may be shame or self-pity, but is quite as likely to be defiance or a reciprocal anger. None of these is the response that should be sought from offenders if the concern is to encourage better behaviour in future.
For wider society, the conjuring and indulgence of anger often obstructs the reflection and learning that needs to take place following a grave crime . It diverts attention not only from the specific needs of victims, but also from considered strategies to reduce the chances of recurrence. Anger focuses on its target (the offender) when crime reduction and the victim’s well-being should be the main concerns.
If anger is pernicious, how should we feel? Crimes, especially grave crimes, bring enormous distress and pain to people and our usual and seemly response to the distress of others is sadness. Sometimes, as more is discovered about the background and context of a crime, this sadness may be felt not only for the victim, but perhaps for all those affected including the perpetrator and the families and associates of all those concerned. Reducing someone to their worst behaviour, to the status of offender, affords a reassuring insulation against a recognition that punishment heaps further pains upon the abuse, trauma and deprivation that have often scarred the lives of those who commit grave crimes. Once we rid ourselves of the error that compassion is ‘zero-sum’ – that in the rhetorical opposition between offender and victim the more compassion for the one, the less is available for the other – it becomes easier to extend this reaction to encompass the wrongdoer as well.
Sadness and grief, as Nussbaum remarks, can be overwhelming and may appear to be too passive, but their replacement by anger and its bogus promises of control can lead to further pain for the victim as well as to rash and unjust allocations of punishment. Sadness can be reflective and measured. It could encourage a community to consider how the outrage it feels can be turned into something of value – to support the victim, to do as much as possible to ensure such things occur less often in future and to reflect on what it is about their society that allows people to behave in such ways. Maybe sadness should be cultivated, then, as a wholesome and salutary response to the miseries of crime. Sadness induces compassion and compassion is an altogether wiser counsellor than anger.
Carlsmith, K., Wilson, T. and Gilbert, D. (2008) ‘The paradoxical consequences of revenge’, Journal of personality and social psychology, 95 (6): 1316 – 1324.
Nussbaum, M.C. (2016) Anger and forgiveness: Resentment, generosity, justice, New York: Oxford University Press.
Nussbaum, M.C. (2017) Powerlessness and the Politics of Blame, The Jefferson Lecture in the Humanities, May 2017.