There are, it seems to me, two overarching reasons that society undertakes to punish criminals. One, surely, is to make society safe both by preventing wrongdoers from reoffending (incarceration works well in this regard, at least temporarily, as does more permanently execution) and also by deterring others from following in their footsteps by making the consequences of illegal behavior horrific enough to outweigh whatever benefits criminal behavior might occasionally bring along in its wake. But the other is less goal-oriented and has more to do with the concept of retribution: to most citizens, it simply feels just and right to respond to bad behavior by making those who willfully engage in it suffer the consequences of their own actions.
In the ideal situation, these two concepts work together to create a sense of justice accomplished. Someone commits an awful crime, a murder. That individual is then arrested, indicted, tried, convicted, and sentenced to life in prison without the possibility of parole. Unless he managed to kill somebody in prison (which I believe is far more difficult in real life than on television, although clearly not impossible), that specific person will commit no more murders. Others who may be contemplating murdering someone will, at least theoretically, be prompted to rethink their plans once they hear that someone convicted of murder has been sent to prison for life with no chance ever of being released. And, finally, the citizenry, upon hearing that someone who willfully and in a premeditated manner took another’s life will henceforth have no control of any sort over his or her own future life, will feel that justice has been done. If the murderer in question lives in a jurisdiction with the death penalty, then the equation is even simpler: one who took the life of another will now pay with his or her own, just as the simple meaning of Scripture suggests ought be the case: ha-shofeikh dam ha-adam ba-adam damo yishafeikh. One who spills the blood of a human being, by human beings shall such a one’s blood be spilt. That was neatly put. But is it really that simple? Even the Torah itself moves on to offer complex legislation designed to modify the original idea and protect, to give one example, the inadvertent manslayer.
The prosecution of Dzhokhar Tsanaev, the surviving Boston bomber, provides an excellent example of how these ideas can work together well. If he is convicted in federal court, he will either be executed or sentenced to a very long prison sentence. And all of the requirements for the reasonableness of punishment will be in place. His sentence at least may deter others from embarking on the same kind of terror mission upon which the defendant and his brother witlessly embarked. It will certainly prevent the defendant himself from reoffending. And it feels just and right for the person convicted of the senseless murder of three and the maiming of hundreds to be forced to accept a punishment commensurate with his crimes, whatever it turns out to be. It seems to me that this latter point serves as the key concept for most of us. When President Obama, on the day of the bombing, declared that it was only a matter of time before those responsible for the bombing feel the “full weight of justice,” he was in effect saying that same thing exactly: although the point of catching the criminals is surely also to deter others and prevent re-offense, the primary reason for capturing the wrongdoer or wrongdoers is to bring them to justice and make them pay for their crimes.
But how should society respond when only one of these avenues of justification is operative, when only one makes sense? That, I realize, is by far the more interesting question to ponder. (I’ve just lately been reading a book, The Urgings of Conscience: A Theory of Punishment, by University of Arkansas professor of philosophy Jacob Adler and I’ve been prompted by what I’ve read to reconsider these issues in light of his very cogent, compelling arguments. The book, which is very clever and interesting, was published twenty years ago by the Temple University Press in Philadelphia and is still available.)
A good example of how complicated it is to decide where fairness and justice lie when the “other” justifications for punishment—inhibiting criminals from re-offending and discouraging would-be criminals from following in their footsteps—are absent could derive from the announcement last week by the Zentrale Stelle der Landesjustizverwaltungen zur Aufklärung nationalsozialistischer Verbrechen (known in German-government-prepared English-language documents as Central Office of the State Justice Administrations for the Investigation of National Socialist Crimes) that it has prepared a list of fifty still-living individuals, men and women, who served as guards at Auschwitz and that it intends to pursue their prosecution if such a path forward proves feasible and legally viable. The history of the organization is interesting. At first, it fell to the Allied authorities to prosecute war criminals. (The trials at Nuremberg in 1945 and 1946 were the most famous, but there were many others. In the end, the total number of Nazi criminals convicted of war crimes under British, French, and American jurisdiction between the end of the war and 1949 was 5,025, a mere 806 of whom were sentenced to death. Of those, however, an even more negligible 486 were actually executed, the rest successfully having had their death sentences commuted to prison sentences of various lengths. It is not known how many Nazis were executed or imprisoned by Soviet authorities after the war, but the number is presumed to be in the tens of thousands.) After 1949, however, the responsibility to prosecute Nazis guilty of war crimes fell to the German government itself. However, the German justice system as it then existed was only legally capable of acting with respect to war crimes committed in Germany itself. And so it was specifically to create a government agency possessed of the right to prosecute Nazi criminals whose crimes were committed outside of Germany that the Zentrale Stelle was created in 1958. To date, the agency—sometimes popularly called the Z Commission—has prosecuted some 7000 former Nazis. Generally speaking, the formerly occupied countries of Europe have prosecuted their own collaborators and war criminals.
The next step, the Z Commission announced, will be to discover if any of the people on the list was tried for his or her crimes either by the Allies after the war or by the German government itself. (Why this was not done before the announcement was made was not made explicit. I personally would have wanted to know that before going public.) More to the point is that this is not an old list that prosecutors have decided now for their own reasons to resurrect; the press release specified that on the list are some names that were only added in the last year as a result of ongoing investigatory research. There could, therefore, be individuals on the list who have never been publicly identified (much less brought to justice), who have never answered for the willing role they played in the murder not of thousands or hundreds of thousands, but of millions.
These are, naturally, very old people. Auschwitz was liberated by the Red Army on January 27, 1945, more than sixty-eight years ago. Assuming the guards were all at least in their twenties, that would make the youngest of them eighty-eight. Some were surely older. Is there any point, really, in prosecuting nonagenarians for crimes they committed well over half a century ago? They are surely not going to reoffend now. Their prosecution, especially if it is successful, will not deter others from serving in the S.S. or from volunteering to serve in the Nazi war against the Jews. The only reason to proceed, therefore, is the pure pursuit of justice itself. And that, interestingly enough, is where the debate begins.
Some have suggested that a more reasonable approach to the handful of elderly surviving perpetrators would be to create public forums in which these few remaining mass murderers could finally speak openly and freely about what they did, what they saw, what they felt as they participated in genocide. In court, the argument goes, they will say as little as possible and nothing at all personal. But the point of these forums would not be to convict, then punish, the perpetrators, but to allow their candor to lead Germans into a future energized by the resolve never again to allow fascism to take root in their country. Allowing these few remaining war criminals to speak freely and without the fear of punishment, the proposal suggests, could lead to a kind of national reconciliation, something in the way that the Truth and Reconciliation Commission in South Africa sought to bring former enemies together to create a new South Africa.
In South Africa, the concept worked well. Other similar commissions in the world, for example the National Commission for Forced Disappearances in Argentina, have worked less well. In the end, the key to success in such an undertaking is the ground-level assumption, shared by all, that reconciliation, although difficult and painful, is possible. In South Africa, for example, the commission brought oppressed and oppressor together in a cathartic effort to exorcise the past of its demons and thus to create a demon-free path forward into the future. That, I believe, was a reasonable, even a noble, undertaking. But in the context of Auschwitz we are talking about something else entirely: the proposed reconciliation will not be between the murderers and the murdered, but between a nation having trouble “reconciling” itself to its own crimes and the ghosts of its fascist past. I can see why Germans would long for that kind of cathartic depuration of national guilt. Who wouldn’t? But that kind of expurgation can only come, as our own Torah teaches, from some combination of repentance, prayer, and charity…and not from a commission that specifically exists to circumvent the justice system.
The Torah verse that does seem relevant to me is the famous injunction tzedek tzedek tirdof, usually translated as “Justice, justice shall you pursue.” The repetition of the word for justice has puzzled generations of scholars and commentators. To me personally, the verse suggests that true justice is always possessed of a dual aspect and invariably provides justice for the victim, who seeks and attains a just response to a crime committed against him or her, as well as justice for the accused, who is to be presumed innocent until found guilty by a jury of his or her peers. To sidestep that entire process merely because a murderer has successfully avoided prosecution for decades is to deny justice to the dead, who in my opinion even posthumously retain their right to see their murderers brought to justice. Therefore, I applaud the decision of the Zentralle Stelle to pursue those who had a hand in the murder of millions even after all these many years have passed. The dead are still dead. So why should their murderers not still be answerable for their crimes?