You'll Never See an Outlaw Drive a Family From Its Home

Nils Christie walked on May 27 and this world is poorer for his departure. Why should people on this continent care about the death of a Norwegian criminologist? No reason, I suppose, if we think we’ve really got a handle on that crime thing.

We do not have a handle on crime when we think criminals are really different from us because they are evil but they are really like us because they will respond to positive and negative reinforcement, reward and risk, just exactly as we would. It should be easy to see that one of these propositions is probably untrue. In fact, they both are.

I’ve been in the criminal justice system for over 40 years in every capacity from defendant to judge. I’ve lost count of the number of capital murder cases I’ve touched as a lawyer or a judge. In all of that, I am sure that I’ve met three really sociopathic people who, if I had the power, I would lock up and throw away the key. And I’m aware of one more I have no doubt is a sociopath, sight unseen.

You may reasonably argue that I am mistaken. It’s a bit harder to disbelieve all the research that’s been done on “career criminals” that appears to show it’s not that they don’t perceive risks. They just weigh the risks differently than most of us would. This is, by the way, also true of teenagers, but most of them will get over it.

A lot of criminological research in the U.S. has been devoted to trying to figure out just how much crime exists. One major source of this information is the FBI’s Uniform Crime Reports. The UCR started in 1930 during the perfect storm for criminal activity of the Great Depression and alcohol Prohibition. Bootlegging addressed the markets created by Prohibition and the last bootleggers standing in the violent turf wars that followed were the crime syndicates still causing problems today. Prohibition gave us organized crime and NASCAR, the latter keeping the romance with speed if not with illegality.

The Depression also bequeathed romanticism about crime. In those days, banks were repossessing family farms or disappearing with the savings of depositors, and the crooks that survived by armed robbery were, depending on your point of view, either rabid animals to be put down on sight or Robin Hoods taking up for the working class. The legendary robbers live on today: John Dillinger, Baby-Face Nelson, Bonnie and Clyde, Pretty Boy Floyd.

Another legend, Woody Guthrie, expressed the ambivalence of the Depression times:

Yes, as through this world I've wandered

I've seen lots of funny men

Some will rob you with a six-gun

And some with a fountain pen

And as through your life you travel

Yes, as through your life you roam

You won't never see an outlaw

Drive a family from their home

The UCR counts crimes reported to the police. In 1972, the Bureau of Justice Statistics was tasked with gathering reports directly from the public and the National Crime Victimization Survey was born. The NCVS and the UCR have never matched, and lots of effort has been put into trying to explain the gap. On a smaller scale, there are studies based on interviewing convicted criminals about other criminal activity. Those studies, statistically expanded, yield a third measure of crimes with no relationship to the first two.

In A Suitable Amount of Crime (2004), Nils Christie pointed out what should be the obvious but is not. “Crime” is a fluid concept that changes in response to many interests unrelated to harm or to morality. It is so fluid that just about any human desire could be reformulated as a crime if there is enough interest in rent seeking on the response to “criminals.”

To view crime this way, it helps to know some criminals and have some idea how many of them fit the understanding that crime defines sociopathy. Christie, born in 1928, began his investigations staring evil square in the face in the person of concentration camp guards. He was not the only thinker to notice that the scale of the Shoah had to mean that there was either a lot more evil in humans than generally thought or a lot less. It’s our loss that his 1952 thoughts on the concentration camp staff, Fangevoktere i konsentrasjonsleire, did not get translated to English. Still, you can see fruits of that work in Christie’s translated works and in the progress of criminology. 

Those thoughts on the character of the worker bees doing the dirty work of the Shoah set up an alarming series of social psychology experiments by Stanley Milgrim and others that demonstrated for any doubters what Hannah Arendt called in the Shoah context “the banality of evil.”

Religious Studies scholar Rollo Romig put his finger on the labeling problem of equating criminality with evil:

 ‘Evil’ has become the word we apply to perpetrators who we’re both unable and unwilling to do anything to repair, and for whom all of our mechanisms of justice seem unequal: it describes the limits of what malevolence we’re able to bear. In the end, it’s a word that says more about the helplessness of the accuser than it does the transgressor.

Great gobs of our popular culture use crime as a source of conflict, and of course there’s no story without conflict of some sort. What the crime stories all around us teach is that the great resolution is when the criminal in apprehended or sometimes when the criminal is punished. This renders a whole area of criminological research invisible: are prisons criminogenic (causing crime) or do so many prisoners return to crime because they are evil?

As a criminal court judge, I had to face the fact that everyone I locked up was going to be released some day. So it was very important whether they would come out better than they went in or worse.

In 1981, Nils Christie published Limits to Pain, in which he urged us to understand that the intentional infliction of pain as punishment for crime violates the values of kindness and forgiveness that—had they been internalized in the first place---we claim would have prevented the crime. Christie asked us whether it is better for us to model the behavior we wish to encourage or the behavior we claim to despise?

In Hvis skolen ikke fantes (1971) (“If There Were No Schools”), Christie pointed out that the modern industrial economy has rendered the young useless except in vestiges of our past like farm labor. For that reason, we can tolerate schools that do not teach literacy or numeracy as long as they occupy our offspring. The primary function of public schools, like prisons, has become custodial, and they raise the same question. Will people emerge from custody better or worse than when they entered?

As to prisons, the U.S. is lurching back to reality after an experiment with one answer to the problem that most prisoners will be released: Don’t release them, or release them under conditions with which they are not prepared to comply. Predictably, we’ve come to the realization that we can’t afford that solution, and the bon mot about a year in prison costing more than a year at Harvard is a commonplace.

Another realization—that every stage of the criminal justice system exhibits racial bias---is slower dawning. That bias also infects the other possible answer to the problem of prisoners as recipients of intensive instruction on how to improve their criminal behavior: kill them.

Last month, a conservative movement (rather than a cabal of mushy-headed liberals) succeeded in repealing the death penalty in Nebraska, just barely. Republican Governor Pete Ricketts vetoed the repeal and, in the televised words of one player, “cashed in all his political chips” to make the veto stick. He had to flip three votes. He flipped two.

It was a harrowing debate full of religion and anecdotes, neither of which should drive policy. The success of the repeal was set up when two of the four major secrets of the death penalty got out.

One that will never get out is the truth about whether the death penalty deters homicide. The numbers are not subject to dispute. If you arrange those numbers by the conventions of multiple regression analysis, there is no deterrence. If you arrange those same numbers by the conventions of econometrics, there is. If you can sort out these two methods, you are entitled to have an opinion about deterrence. If you can’t, you are standing up opinion against arithmetic when you can’t do the arithmetic, which would be laughable if it were not life and death.

A secret that will eventually get out is that most workers in the system oppose the death penalty for various reasons but can’t say so until they retire. Many of them have written about it after retirement, but not all have the skill or the ability to rationalize working in a useless killing machine not fundamentally different from the one the concentration camp guards Nils Christie studied supported.

The two secrets that did come out are: (1) killing a killer is more expensive than life without parole and (2) as long as we have a death penalty, the question will not be if we execute innocent people but rather how many innocent people will we execute?

None of this has anything to do with whether this or that scumbag “deserves to die.” Of course the guilty ones do. We don’t deserve to kill them even if we could identify them, which we cannot do.

If we can’t kill them and we can’t throw away the key and keep them locked up forever in great numbers, we then face the fake moral dilemma that a prison designed to make people better rather than worse is not just expensive. The dilemma is locking people up in conditions objectively more comfortable than the conditions most of them confronted in the free world and the fakery is it’s not rational to bring prisons down when we have the resources to bring the free world up.

Influenced by the scholarship of Nils Christie and his colleagues, the prisons in Norway are probably more efficient than the schools in the U.S. How dare I say that? Well, the Norwegian recidivism (“re-offending”) rate is about 20 percent and in the U.S. that figure is well over 50 percent.

Norway does not waste money trying to kill criminals and Norwegian prison sentences are much shorter than ours. Most people who watch the news noticed the racist who perpetrated a mass killing to rival the ones that have become unfortunately commonplace in the U.S., Anders Behring Breivik.

Breivik, a proud denizen of the racist U.S. website, Stormfront, got the maximum sentence available when he was convicted of killing 77 people, most of them teenagers. That sentence is 21 years. Breivik reacted to the sentence with a fascist salute.

In fact, 21 years is the end of Breivik’s determinate sentence. He will be eligible for parole after 10 years and the issue at the parole hearing will be whether he still poses a danger to the public. It’s fairly obvious that he did at his sentencing. Less well known is that if he’s shown to pose a continuing danger, he can be kept in custody longer than 21 years. There will be a parole hearing every five years. Norway does not throw away the key.

Here in the United States, we are still dealing with the insights in Nils Christie’s last major book, published in 1996 as Kriminalitetskontrol som industri: På vej mod GULAG, vestlig stil? and translated in 2000 as Crime Control as Industry: Towards GULAGs, Western Style? Over the resistance of what some of us have come to call the “prison-industrial complex,” which treats purposeful pain as a profit center, the U.S. is backing away from the highest incarceration rate in the industrialized world.

I’ll venture to say that our sentencing reforms, based on cost, will not match Norway’s results from policies based on protecting the public from crime. This conundrum contains the answer to why the passing of an emeritus professor from the University of Oslo is worth noting in the U.S. Nils Christie’s life work is a demonstration of why the solution to pain inflicted by criminals is not to inflict pain on them. The object of kindness is not to help criminals, but rather to help ourselves stay safer.

Should we give up public safety as a goal of criminal justice because more safety requires less cruelty? Or do we really believe we already have a handle on that crime thing?

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.