There's a transactional view of crime that holds a certain punishment to balance out a given crime, after which the felon has paid his or her debt to society. "If you don't want the time, don't do the crime," shouted Michael Howard, when Home Secretary, to a Conservative Party conference back in the 1990s.
There are two problems with that. If you don't mind the time, or the risk of the time, the corollary goes, then do the crime. That's not so great for society. Secondly, if no thought is given to, or measures taken to prevent, re-offending, then there can be grave dangers for some of the most vulnerable in society.
Joseph Edward Duncan III has just been sentenced to death in Idaho for doing this:
He took [9 year old] Dylan and the boy's then-8-year-old sister, Shasta, to a remote western Montana campsite where he raped, tortured and threatened them before shooting Dylan in the head and burning his body. Jurors viewed horrifying video Duncan made of him sexually abusing, torturing and hanging Dylan until the boy lost consciousness.First, though, he had tied up their 13-year-old brother, his mother and her fiance and bludgeoned them to death with a hammer.
Here's something about Duncan's background (emphasis added):
... by the time he was 16, Duncan estimated he had raped 13 younger boys, some at gunpoint, it said.Note the psychobabble of victimhood in Duncan's words. His self-pity also drips from the entries of the blog he maintained until 2005. On the whole, this sort of self-exculpatory drivel is learned by the offender from some of the professionals they encounter as a consequence of their crime, generally those most self-consciously motivated to help the offender. It doesn't help. It excuses. It makes matters worse.
“It was an outlet for my feelings [of] rejections. One from my mother and one from my father,” Duncan wrote in a personal history cited by The Times. He said he didn’t feel wanted at home and at school, he was bullied by peers because of his constant moves.
His hostility led him to sexually assault a 9-year-old boy at gunpoint when he was 15, and a year later, to tie up six young boys and sexually assault them, the newspaper said.
Duncan was deemed a sexual psychopath at 17, after he was arrested for the rape and torture of a 14-year-old boy in 1980. Police said Duncan broke into a neighbor’s house, stole a gun, and then pulled it on the boy, who was walking to school.
Duncan forced him into a wooded area and made the boy take off his clothes and perform a sexual act, according to court documents. Duncan then prodded the boy further into the woods, sexually assaulted him again, and then beat the boy’s buttocks with a stick and burned him with a cigarette. He led the boy back to his clothes and told him to run away.
Duncan's next encounter with the law came in April, when he was released on $15,000 bail after being charged with molesting a boy in Minnesota. Police in Fargo, where his last-known address was, had been looking for Duncan since May, when he failed to check in with a probation agent.
A fundamental principle of the criminal law is that people should not be punished for crimes they have not (yet) committed. The parenthetical "yet" in the previous sentence seems to me to be reasonable in the case of Duncan, a lifelong, unrepentant, violent, sexual predator, but perhaps not so in the cases of most criminals - who generally grow out of it.
If people fell neatly into the categories of "mad or bad", things might be simpler, but they do not. We all inhabit the continua of human behaviour and psychology and while there are extremes, like Duncan, there are few of them.
There's no easy answer that I can see. The suffering and deaths of the children and adults in the wake of Duncan's passage through life seems too high a price to pay for a legal principle. Unfortunately, I suspect this is a false opposition: while Duncan was an extreme and might have been preventable, I have no confidence that any bureaucratic system would successfully identify risks while avoiding false positives. A system of preventative detention, even if acceptable in principle which I doubt it could be, wouldn't work.
But perhaps we could look again at the transactional view of justice. The idea that a given term of imprisonment in some way equals a certain crime is silly. It might be that such a term is proportional to a given crime, but ideas of reparation and prevention should also have a place.
Prevention needn't mean detention. But it would surely be reasonable to subject proven recidivist criminals to a greater burden of surveillance and inconvenience than that endured by the rest of society, until such time as their behaviour seems proven, in return, to have changed.
In the case of the tiny group of very dangerous psychopaths like Duncan, that would be never.