Let us suppose that an elderly man commits a crime — a nonviolent crime, but a serious one — and is sentenced to three years in prison. His cognitive abilities are failing, and there is some question as to whether he will remember why he’s being punished. Taxpayers will cover the costs of his medical care, his housing and his upkeep while he’s locked up.
Prison will not rehabilitate him; he will never again be in a position to cause the kind of harm he caused when committing his crime. At his age and in his condition he is statistically unlikely to commit any other kind of crime. Because he poses no harm his incarceration will protect no one. He has been publicly disgraced. Perhaps people thinking of following his criminal example will be dissuaded by his prison sentence, but it’s equally likely that they will not.
There remains only one rationale for requiring him to report to prison instead of living out his remaining years in his own home and at his own expense: retribution. Not vengeance, but punishment purely for the sake of punishment.
Why are we ruminating on this? Because of the imminent incarceration, after years of appeals, of former Los Angeles County Sheriff Lee Baca, who was convicted in 2017 of obstruction of justice and conspiracy for his role in keeping an inmate-informant out of the reach of his FBI handlers and away from a grand jury. Baca, who has been diagnosed with Alzheimer’s disease, surely poses little threat in the future. Yet he has been ordered by a federal court to report to prison by Feb. 5.
Of the reasons for criminal punishment — restitution, incapacitation, rehabilitation, specific deterrence (to change the criminal’s behavior), general deterrence (to persuade others not to do the same thing), retribution — the most primitive, certainly, is retribution. When meted out, it improves nothing, it prevents nothing, but it touches a primordial spot in the human psyche. It is what aggrieved people and societies generally mean when they demand “justice.” If it is measured, limited, balanced with mercy, it can play a part in a complete system of justice.
Punishment for its own sake is sometimes seen as being at odds with a more progressive, pragmatic and enlightened approach to criminal justice. Desire for retribution brought us gratuitously long sentences, mandatory minimums, prison terms far out of proportion to the crimes they purported to punish.
A defining question in an era of criminal justice reform is whether our society still ought to include retribution as one response to crime.
One steady theme of criminal justice reform is that prison should be reserved for those who could cause us harm or those whose behavior it could improve. It is an argument not just from the political left, but from the right as well. In a 2014 Times op-ed, Newt Gingrich and B. Wayne Hughes Jr. of the conservative reform group Right on Crime wrote:
“Prisons are for people we are afraid of, but we have been filling them with many folks we are just mad at.”
We understand that argument. And certainly there are people in our prisons who no longer belong there. Some should be released because they’re sick or are no longer dangerous or are otherwise deserving of compassion, and it no longer makes sense to hold them.
But consider Baca’s case. As sheriff, he was in a position of considerable power over thousands of inmates, his own deputies and, for a time, federal investigators. He abused that power to block an investigation into the beating of inmates. Nearly a dozen deputies and other sheriff’s officials were convicted and went to prison over the course of the investigation that also targeted Baca. The currently imprisoned include Paul Tanaka, Baca’s onetime undersheriff.
Baca is sick and elderly, it is true. But he and others who abuse their considerable power to harm others must be brought to account or otherwise leave us with a nagging sense that they evaded justice. For Baca to go free would be an indictment of a system that turned a blind eye for too long to the jail violence, the corruption and the misuse of high office. As Baca goes to prison, the resolution somehow seems simultaneously fitting and excessive, satisfying and unsettling, just and gratuitous. It is not a perfect outcome, but it is perhaps the best conclusion that human wisdom, with all its failings and inconsistencies, can provide.