Transportation as punishment

On 13th May 1787 11 ships loaded to the gunwales with a human cargo set sail from Portsmouth for Botany Bay, in the land of New South Wales discovered by Captain James Cook some seventeen years previously. The 1420 souls aboard – somewhat more than that arrived at the other end – were to begin a colony in the form of a prison under the governorship of Captain Arthur Phillip – a colony built by forced labour at the barrel of the gun and at the crack of the cat o’ nine tails. Their journey must have been as terrifying in prospect as it was remarkable in completion. What could a poorly educated horse thief or pickpocket have imagined lay before him across the sea?

Transportation provides a fascinating case study in the history and methods of criminal punishment. Its need arose out of changing social conditions in England in the 18th century – the increasing urbanisation and population growth in Britain owing to the industrial revolution resulted in a terrific displacement of persons and, naturally, in an increase in crimes against property in particular. Whereas localised crimes of a relatively minor nature could have been dealt with by temporary and economic measures such as the stocks in rural districts, the rapid growth of the anonymous city meant that the means of administering punishments in this way was far less manageable. A village miscreant could have been quickly isolated, condemned and shamed by a community familiar to him or her. In the streets of London, it was easier to slip in and out of the crowd unnoticed.

Transportation was not a new punishment in 1787. But Cook’s discovery of an apparently empty and vast island at the other end of the globe made it a more attractive solution to the perennial problem of punishment. Transportation was, it was argued, more humane than the noose. The prisons of the day were notoriously overcrowded and disease-ridden; and in fact the government had resorted to putting its prisoners in prison-hulks moored on the Thames. More space was needed in the jails. What is more transportation was a means of excreting the waste matter from the body of society for its general health: the community stood only to benefit from the disposal of its more annoying and troublesome members. This was opportunity to lance the boil. It had its deterrent effect, too: New South Wales was to the eighteenth century mind surely further away than the moon is to ours – it was a terrifying prospect. And, it could also be argued, transportation was a great opportunity for the rehabilitation of the convict: if he survived the journey and the beatings and did not starve and served out his seven- or fourteen-year sentence he could find himself presented with all the opportunities of a new life in a new country.

O'Donovan on punishment II

In his chapter on punishment, O'Donovan carefully distinguishes between divine and human punishment so as to show human punishment its limited scope. But in doing so, he shows that punishing is something that God does:

Ontologically native to God, punishment takes some excusing in terms of extrinsic goods, when practices among consanguinous humankind. Ways of Judgment p.114

It is a side-comment only, but a huge statement in the context of contemporary theology: punishment - ie, 'a judgment enacted on the person, property, or liberty of the condemned party’ is something not foreign but rather proper to God, requiring no other justification other than that it is an exercise of his supreme dominion.

Ricoeur on punishment

Reading Ricoeur has been very stimulating, though at times he comes accross almost as a naive thinker. He says this in a touching essay about the excess of grace, called 'the Logic of Jesus, the Logic of God':

...are we not invited to discern even in the most just punishment, the disquieting countenance of wrath and vengeance? It is good that, goaded by the paradoxes of Jesus we would distrust our better works. But it is not only a question of distrust Does not the more positive way become for us deliberately to orient punishment to improvement rather than expiation? Because on which side is the gospel? Is it on the side of the vengeance of society or on the isde of the rehabilitation of the culpable?

This is well said: a Christian ethics of punishment must stem from the evangel of mercy, surely... And yet, Western society is speeding fast away from this logic.

Helen Garner – Joe Cinque’s Consolation: A True Story of Death, Grief and the Law

[For non-Australian readers: Helen Garner is one the best contemporary Australian writers.]

Joe Cinque is dead.

It was his girlfriend, Anu Singh, a pretty and bright law student at ANU who injected him first with Rohypnol (the “date-rape” drug) and then an overdose of heroin; and did nothing during the several hours it took him to die. Her confused and desperate call to the ambulance was too little, too late.

It was a bizarre killing: made even more so by the revelations that Singh had held a dinner party in the days before at which she had made no secret of her intent to carry out a murder-suicide. But then, our newspapers are full of bizarre killings. So what drove Helen Garner to write about this case?

Garner can’t quite explain it. As she tells it, she happened across the story at a moment of personal crisis for her:

… I had recently been forced to acknowledge that I was a woman at the end of my tether. I was fifty-five. My third marriage had just collapsed in a welter of desolation. I was living alone in Sydney, in a rented flat, on the fifth floor of a building on the top of a hill. I had no job, and lacked the heart to look for one. I knew I had to get out of my own head, to find some work to do. (p.13)

Garner admits that her interest in the crime was at least at first because she wanted to look at a woman tried with murder. Feeling pain, anger and humiliation, she wanted to know “if anything made them different from me”. (p.25) There is no illusion of mere objectivity in Garner’s non-fiction: that of an absent, disinterested observer. Garner is as much a character in the narrative as Anu Singh and Joe Cinque’s mother. And it is the rawness of Garner’s hurt spirit that gives her the ability to record so sensitively the pain, bewilderment and grief of others.

The narrative of the book begins in the court case against Anu Singh. Garner is able to reflect on her own petty snap judgments and bitchiness as she finds herself intuitively disliking Anu Singh. But her intuitions haven’t let her down: though she is unable to interview the young woman and her accomplice, she speaks to acquaintances, to her father and combs over the court documents.
Singh does not come over well (unsurprisingly): she is obsessive and manipulative, on Garner’s account; she shirks the responsibility of her actions by pleading psychiatric illness. Her father, a Dr Singh, appears likewise appallingly self-centred and greedy, oblivious to the real pain in Cinque’s family. Under cross-examination Dr Singh, asked about his religious beliefs and those of his daughter, replies “She is too young to have any beliefs.” (p.29) The reader is left to infer that such beliefs may have saved Anu from herself. The psychiatric evidence seems unable to explain the “simple wickedness” at the heart of the story.

Garner finds herself dismayed by the short sentence handed out to Singh. And so the focus of her story turns to Joe’s mother, Maria. Striking up a real friendship with Maria and her family, she finds that justice system as not mollified their grief and anger. Through these interviews, Garner finds her self compelled to keep on with the project of the book because something remains deeply unsatisfied and unsatisfying in the story. Joe Cinque’s blood is, we might say, crying out from the ground.

Towards the end of the book, Garner seeks out the judge in the case, Justice Ken Crispin. This is a telling conversation. Crispin, an active Christian, is convincing in word and person, and does not resile from the moral difficulties of the case. He admits that Madhavi Rao, Singh’s friend, failed in her duty of care to Joe Cinque – knowing what was happening but doing little to intervene - but that the law does not make this criminal.

But deep questions remain. As Garner puts it:

I listened to him without arguing. But I was thinking, Where does all the woundedness, the hatred go? What becomes of the desire for vengeance, for a settling of the score? (p.318)

But though she suspects how the Christian Crispin might answer - that this is the province of the Almighty – she holds the question back because “we weren’t in a church. We were in the Supreme Court, the temple of reason.” (p.320) I think this was a pity: while I respect Helen Garner’s amazing courage in her quest, I think that this bracketing of religious discussion out of the public forum leaves a vacuum that Garner struggles to fill. I suspect that she herself knows this.

What she discovers is that human justice struggles at the point of atonement. As Justice Crispin says, very rarely in the sentencing process is satisfaction achieved. So we cry out again and again with Garner, where does it go? Where, O God, does it go?

At the sentencing of Anu Singh, Joe Cinque’s parents had made a speech to the waiting media in front of the court saying that they hoped that somebody would kill one of the judge’s children so that he would understand. What they didn’t know at this stage is that this judge had indeed lost a child. He knew something of their griefs; he was not unlike them in their suffering.
In the end, Garner offers the book to the Cinque’s as their “consolation” – a word evoking the momentous declaration of Isaiah 40:1. And what is their consolation? The book remembers Joe, and defends him. In the end Anu Singh and her calamitous behaviour fade: and what Garner leaves us with is a celebration of the life of this ordinary, dearly loved boy.

O'Donovan on punishment

Oliver O'Donovan does talk good sense about a lot of things, not least on the matter of punishment. He takes from Grotius the cue that punishment is 'ontologically native to God'. He repudiates some of the contemporary theology that denies this (namely that of Gorringe) in the name of dening that punishment of any kind is valid, but fails to do so coherently, or theologically.

He writes:

When we speak of God's own 'punishing' we are speaking of his judgement within the quasi-political context of his own covenant-faithfulness. Divine punishment...is God's disclosure of himself as our good, revealing the truth of our wrong. For this reason Christians have always found it necessary to speak of divine punishment in connection with the Atonement, for the Atonement is the supreme demonstration of God's covenant-faithfulness. Ways of Judgment, p. 107