In the sixth century CE, the Roman emperor Justinian wrote that the animating principle behind his Corpus Juris Civilis, one of the first and most significant codifications of law in the Western world, was that “justice is the constant and perpetual wish to render everyone his due.” That, many people would say, continues to be the basic and most fundamental law: Everyone ought to get what’s coming to them.
The question that necessarily follows, of course, is what does each person have coming to them? In the criminal context, what is the correct amount of punishment that the state should bring to bear against a person? This dilemma animates Monica Byrne’s “Golden Rule,” which unfolds in a future society that has exchanged the current carceral approach to criminal punishment for a system of ritualized reprisal.
Justinian’s ancient predecessors would have practiced some version of lex talionis: the law of exact retaliation, an eye for an eye. But the intellectual descendants of the European Enlightenment—the “Blackstone, Bentham, and Foucault” of Byrne’s story—posited that most people thought about justice and punishment too concretely, even myopically. The question of what a person “deserves” necessarily requires lawgivers to contemplate the needs of a community as a whole when passing judgment—including, by necessity, the needs of the perpetrators of criminal activity.
Eighteenth-century philosopher Jeremy Bentham, for instance, wrote that all punishment is inherently evil, and should only be applied to exclude a greater evil. The purpose of punishment is thus to increase total happiness throughout the polity by preventing future crime, rather than to exact vengeance for past offenses.
Today, criminal law is based on the idea that there are effectively four “purposes” of punishment: to remove some people who cannot conform to the law (incapacitation); to reform those who are able to be productive and law-abiding members of society (rehabilitation); to dissuade others from violating the law (deterrence); and, of course, retribution. Supporters of America’s modern, supposedly enlightened criminal justice system like to think it focuses on rehabilitation over retribution. (In Arizona, where I practice, the organization that administers prisons has just rebranded itself as the Arizona Department of Corrections, Rehabilitation, and Reentry, a title that I decline to use because I don’t think that it actually does those last two things.)
Supporters of America’s modern, supposedly enlightened criminal justice system like to think it focuses on rehabilitation over retribution.
With this background, it is no surprise that “Golden Rule” is provocative. It presents a world in which society has shed the “myth” that the purpose of criminal punishment is rehabilitative instead of purely retributive. In the place of today’s imperfect system, a new model allows society to exact direct vengeance on those who have broken the law; punishments are carried out by scarlet-uniformed ministers, all of whom are survivors of criminal acts. “The point of Golden Rule,” the minister (and narrator) Robin tells us, “is retribution, not reform.”
While some readers might view the system posited by “Golden Rule” to be a cynically prophetic view of where the criminal justice system might go, I view it as a dark, but accurate, take on where the system of criminal punishment is now.
Robin explains the “fiction” underlying Golden Rule—the proposition that it is possible to impose a precisely matched one-to-one punishment for a particular crime. While this is the story pitched to the world at large to justify Golden Rule, Robin and her fellow ministers understand that it is simply not possible to inflict on someone the same harms they have enacted on others. The shock alone of experiencing an unanticipated crime is incommensurable with a similar punishment that is expected in advance, even if the timing is unpredictable. And so the ministers undertake a process of “invention” to ensure that, while the exact crime is not recreated, the trauma is.
Indeed, it seems that the purpose of Golden Rule is the infliction of trauma. When Byrne first invokes the term “commensurate severity,” the legal concept at the heart of Golden Rule, I couldn’t help but think of the “proportionality” principle outlined in the US Sentencing Guidelines and Supreme Court jurisprudence on capital punishment. In the story, commensurate severity necessitates the cultivated and calculated application of human suffering.
While the purpose of the ministers’ inventive process is, purportedly, to ensure the perpetrators of crime truly feel what their victims felt, punishment is personal for Robin and her fellow ministers. Robin seems to enjoy her role as Golden Rule executor, finding “poetry” in the act. It’s not hard to see ourselves in Robin, taking a type of satisfaction in the suffering of people whom we view as deserving of violence. I do not mean to suggest that Graham, the perpetrator of the story’s crime, is a sympathetic character somehow deserving of mercy or forgiveness. My greater concern is that by allowing Robin and her ministers to dehumanize even offenders whom they might rightfully detest, the system risks creating a mentality that permits, and even celebrates, the suffering of other human beings.
While Byrne’s story focuses on a particular type of violent, gendered offense, I couldn’t help but think of some of my own clients in the context of Golden Rule—particularly those who committed cruel and violent acts as juveniles. No doubt, from our lens as adults, these acts seem unspeakably depraved. But when we stop to understand that these offenders are often acting in response to their own (often deplorable) circumstances, and that they are not yet fully developed, rational adults, can we hold them as accountable as we would adult offenders? I have seen people who have committed the most horrific crimes as 15- and 16-year-olds develop into some of the kindest and gentlest adults I have known. How would we apply Golden Rule to these offenders? Would they get some kind of discount on the trauma inflicted upon them?
The system risks creating a mentality that permits, and even celebrates, the suffering of other human beings.
Of course, it’s impossible to talk about the dynamic between Robin and Graham without acknowledging and understanding the very specific type of gendered violence that Graham has perpetrated against his partner, Kelly. This is one reason why we so instinctively sympathize with Robin’s quest in a way we wouldn’t if Graham had committed a robbery, injured someone in a bar fight, or even perpetrated a hit-and-run. But as viscerally as Graham disgusts us, it is also worth interrogating our own willingness to believe that only some criminals can be reformed.
Robin, though, doesn’t seem to distinguish this specific type of violent criminal from others. She views her targets, writ large, as less than human. Her separation of her charges into three categories—flakes, meringues, and jawbreakers—focuses entirely on their reaction to punishment and embeds the assumption that none of them can better themselves. The image of a prevaricating prisoner play-acting penitence and rehabilitation is very familiar to me: It is exactly how prosecutors view most of my own clients.
I recently appeared at a parole hearing for one such client, who had been incarcerated for more than 35 years for a brutal homicide he committed at age 18. While the prosecutor at the hearing harped on the crime and my client’s first seven years of incarceration, which were marked by violent offenses, she completely ignored the following 20-some years that marked his transition from violent criminal to a well-respected mentor of young men in prison. The prosecutor dismissed those experiences as mere window dressing to obscure my client’s inherently violent nature.
What distinguishes Robin from the criminals she seeks to punish? Is it her trauma? Anyone who has experience with the criminal justice system will tell you that criminal defendants are frequently victims of trauma, and that trauma’s cyclic nature often transforms victims into perpetrators.
Weaponizing a purely retributive model does not help victims and survivors in the way we might think.
The nature of the crime in the story is meaningful: Intimate partner violence, among other forms of gendered violence, is frequently under-detected and mishandled by the justice system, and the system often falls short in delivering justice to survivors and their communities. Without a doubt, our current system values some crimes as more blameworthy and some victims as more deserving. But weaponizing a purely retributive model does not help victims and survivors in the way one might think.
Indeed, Byrne’s story acknowledges that the aestheticized, carefully wrought retribution in which Robin deals is not as healing as some might imagine. Even the harshest punishments cannot give back what was taken. For Kelly—the survivor of Graham’s violence—communing with Robin, a fellow survivor, seems more restorative than observing or perpetrating further violence on the man who violated her.
As Byrne invites us to ponder the ethics of a different system of justice, I come away with the same question I’m always asking about the current carceral system: Is this who we want to be? We may agree that Graham deserves the suffering he endures. Do we deserve to inflict it upon him?
