Can societies function without systems of punishment? What is the alternative to prisons? How does the system treat criminals? And is there any room for compassion in the criminal justice system? Leszek Jazdzewski (Fundacja Liberte!) talks with Disa Jironet, who has worked for the Dutch Prosecutors’ Office since 2008, and in the role of prosecutor since 2017. She has previously specialized in youth crime and is currently working as a prosecutor for the National Expertise Centre on Discrimination in Amsterdam. Prior to her work at the Prosecutor’s Office, she worked for Dutch human rights lawyer Liesbeth Zegveld and at the International Criminal Tribunal for the former Yugoslavia. She is also an author and a speaker, her first book “Crime and Compassion” (Ambo|Anthos) was published in 2020, and went to a third reprint within the first six months. The underlying theme in her work is around the role that justice plays in society and on keeping human interests at the heart of complex (legal) systems.
Leszek Jażdżewski (LJ): Can you imagine a society without punishments?
Disa Jironet (DJ): I often conduct a mental experiment when I try to think of concepts in this way. I visualize a small group of people (like a small tribe or a very small village) and imagine if people were living together in a very fundamental way, could they live without punishments? In such a setting – and there are groups of people in the world that do live like that – they hardly need it. Maybe in some extreme cases, but otherwise, they manage everything else through social control and collaboration. Someone may need to leave the group for a while, but then comes back in again, so it is possible to create a system without sanctions in the way that we know it.
However, in complex and large societies we live in right now, where social bonds are not as strong. People do not feel social responsibility towards each other in the way you would if you lived in a very small community. Therefore, we need punishments as a means to keep people’s behavior in check. In this context, the system of punishments comes in place of conscience.
LJ: From the legal perspective, what is the role of punishments in our societies?.
DJ: Criminologically and generally speaking, there are two main goals of punishment. One looks towards the past and punishes what a person already did. The other one is preventive in nature, so it looks towards the future. The school that looks towards the past points out that what you have done means you have broken a rule in the society, you have violated an agreement that we make with each other. We do not hit each other, nor steal each other stuff. You have violated that agreement and, therefore, you have caused damage to society.
In the legal system we have now, which is a vertical and hierarchical system, the damage that you have done is to society. You have done something that harmed our agreement, you have harmed society, and in order to compensate for that, you need to suffer. There needs to be a sanction to compensate for what you have done. And then you repent, in a very Christian way of thinking, by being subjected to punishment.
It may be jail time, paying a fine, or doing social service work. Once you have done that, your debt to society is evened out. It is all about gazing towards the past.
The gaze towards the future is about prevention. Here, there are two types of divisions. First of all, the fact that there are punishment scares people off from committing crime. This approach is called ‘general prevention’. In this sense, if you rob a bank, the odds are high that you will get caught, and then you have to get punishment, which you do not want. As a result, you will find a different way of generating income. The other type is ‘individual prevention’, according to which once you have robbed the bank, the hope is that once you get your punishment, it will prevent you from robbing the bank for the second time, because you will have already suffered so much from the punishment.
In a nutshell, this is why we have punishments to regularly organize society as a regulatory mechanism, and as means to interfere in the lives of people that have crossed the boundaries.
LJ: Is there a better way to punish people than doing jail time? What is your experience with the incarcerated?
DJ: There is some aspect to it that is cruel. When you think about historical development, we came from a situation where corporal punishment was the ‘go to’, so you would get whipped or get your hand chopped off, for instance. Then, at some point, there was a movement of people who declared that this is not humane anymore, so we need to find a different way to inflict harm. The alternative was to take someone’s freedom away.
Currently, we live in an interesting time, because we are starting to question whether taking someone’s freedom by means of isolating is acceptable. Therefore, it seems that we are moving into the next phase, away from corporal punishment. These developments are part of the reason I decided to write my book, Crime and Compassion (2020, Ambo|Anthos) – to explore what options there are and how can it be done.
If we focus on prison sentence rather than financial punishments or civil service, then temporarily removing someone from society, or limiting their freedom is in itself not a bad thing. What makes it complicated or what causes undue damage is the way that we do it and its consequences. For instance, in the Netherlands, as in many other countries, if you go to prison, you lose your social benefits, health care, and your social housing. As a result, because you have no income, if you are expected to pay average rent, you cannot do it, so you will lose your house. Meanwhile, having health care, income, and housing, are generally considered as factors that prevent people from committing crime.
If you have a stable living situation, you are much less inclined to commit crime – both financial crime and violent crimes. Therefore, conducting prison sentences in a way that you lose all these things in the real world is not effective, because as a consequence you become isolated. This is why, once you finish your prison sentence, after many months or years, and you come back into society, you have nothing to build on anymore. You become completely dependent on your social network – if you have it.
This phenomenon is not only inhumane towards the people that we incarcerate (because the punishment is you lose your freedom, and it should not mean that you lose your livelihood), but also really impractical and unpragmatic. It does not serve the society to incarcerate people in this way.
LJ: How does the system treat criminals rights now? Is there an alternative to the current system?
DJ: There is an interesting link between the policies and the attitudes we have as a society towards people that commit crime. The way the policies are shaped are often influenced by the societal attitudes towards something politicians have to feed into their electorate and what they want.
The attitude we have as a society matters. However, we should always separate the person from the crime. As people who do not commit crime, we have the inclination to label people who do commit crimes as ‘criminals’. Therefore, the fact that they have committed crime becomes their entire identity.
You may be a really great father, a helpful neighbor, maybe you have held down a stable job for 15 years, and then you decided to commit crime for whatever reason anyway. This does not mean that it is not your choice, but rather that you made a bad choice. Such a scenario, however, does not diminish all the other parts of your personality. Therefore, making a distinction between who people are and what they do is crucial. We often view the people who commit crimes as separate from ourselves, as if they lived on Mars – but they do not. Once you have committed a crime, you have no right to be part of our community or our society anymore.
Nevertheless, that is a fallacious way of thinking. We want to keep distance from those people, because we fear them or our own potential to do bad things. But, in the end, those people are always part of our community, and they will become part of the community again, once they finish their prison sentence. This is why these two ideas, where we amalgamate the person and what they do, and where we separate those people from ourselves, leads to a way of thinking and a policy structure that does not serve us as a whole – it damages those people, but it also does not do good to us as a community and as a society.
LJ: How should we transform the justice system in a way that it is more compassionate towards people who commit crimes?
DJ: It all starts with the societal and political attitude towards these people. That will determine policies and how you make choices around those people. In a practical sense, what this could mean is that you reshape the way the prison looks. Currently, when you send someone to prison for a long time, you can be fairly sure that they are not going to come out more stable than they came in.
Now, the question is this: do we want stable people in our society? If the answer is yes, then what can we give you so that you will come back into society as a helpful and productive member? That is a real dilemma.
I had a case in court last week. We are still waiting for the verdict. It was a young guy in his twenties when he perpetrated his crimes, and he was suspected of three counts of attempted murder and arson – clearly, serious crimes. And so, I demanded a prison sentence of ten years of incarceration, which is a long time for someone to leave society and to be in prison. It is really hard because I had to determine what is a fitting sanction, proportional to what he has done?
In his case, ten years was definitely proportional to what he had done, in my view, but at the same time, you have a guy who was twenty, and he will spend a decade of his life in prison – that is half of his life that he has lived thus far. So, I am hoping that he will get enough help and support in prison to come out a stronger person, but we do not know that. And that is really difficult for us who are working in the field, because we are trying to serve both of these things – the proportionality and the repression that the society asks for and, at the same time, looking at what the defendant, or the perpetrator, needs.
LJ: What about the question of responsibility? It appears that the whole idea of punishing crimes is based on individual responsibility. Is it possible to hold people responsible but still be compassionate?
DJ: It is possible. The guy that I have mentioned had been taken out of his parental home when he was nine, and he lived in foster care and various institutions until he turned eighteen. In the Netherlands, when you are 18, you go out of the youth system and you are basically on your own, unless you get help. He had a very burdened childhood, which, in some way, clearly affected the choices he made to commit these crimes.
However, he still made these choices, so we must ask ourselves: how far do we ‘zoom out’? If you see someone’s whole life in that instant, you can almost see how one thing led to another, and how all the different people –his parents, siblings, teachers, a social worker – are tied to his story and bear some responsibility for who he became. But if you zoom in into the moments, the days around when these crimes were committed, you can also see that there were several moments when he could have made a different choice.
He could have asked for help. He could have said no, walked away, or done something to mitigate the damage. There were a lot of options for him in that moment to make different choices as well. Since he was not psychologically or psychiatrically impaired, there was nothing wrong with his judgment in that sense. We could have, therefore, expected him to have taken it seriously in that moment and make a different choice.
However, because he did it, we must hold him responsible. Still, this does not mean that he is a bad person or a monster for the harm he committed, but rather that you are a human being with a story and all these different facets tied into it.
I see that and I understand it, but he still made the wrong choice, and I am holding you responsible for it. So, for me, this is the kind of language that I have developed over time in order to maintain balance between the individual versus collective responsibility. However, it something that still confounds me. I find it very difficult to wrap my head around it.
LJ: Is it possible to reconcile the perspectives of the perpetrator and the victim, especially when we talk about the most egregious crimes? Can one still be compassionate towards both sides? How do you see it, especially as a practicing prosecutor?
DJ: In the courtroom under the continental system, the court case is between the defendant and society, not between the defendant and the victim. But when the victim is in the courtroom, you obviously have these two opposing interests – one committing the crime and one that was harmed. In this scenario, it very much depends on the attitude of the defendant – if the defendant does not care about what the consequences of their actions were, or if they are very harsh, then it is hard to feel compassion for both sides.
However, when the defendant is remorseful – like in this case, but also in other cases I have had when – or when they admit committing the crime and are aware of the suffering they have caused, the defendant is also suffering from what they have done. They are carrying the burden of guilt, shame, and sadness. And these are all very real and legitimate emotions. Just because you did a bad thing doesn’t mean that you can’t suffer from the bad thing that you did, right?
And you can say, well, then you should not have done it. But that is often an unhelpful way of thinking, because if you can bring out the suffering in the defendant, if that can be present in the courtroom, then that can resonate with the suffering of the victim. As a result, they are both suffering at the same time. It is not the case that the suffering of the one diminishes the suffering of the other one. If you can both mourn and be sad about what the defendant did and the consequences that it had for the victim, there is a sensation of collective mourning in that very moment, which can have a healing effect for both parties. They can create a completely different dynamics to what we are used to.
I have had several cases like this, whereby speaking to the defendant in a particular way, by using an open, compassionate language, and really trying to understand their experience of the crime. It is really important for the victims to hear their side of the story too. In such a situation, it is often helpful to the victim to hear a little bit about this other kind of suffering as well.
In the end, what it comes down to is that there is no zero sum when it comes to compassion or suffering. These are human emotions that can be present in the courtroom too.
LJ: What have you been working on since your first book and what are your plans for future projects?
DJ: I find it really important to start from experience, and courtroom is where I have the most experience – I have been in the courtroom for over 15 years. For me, that is a place where I feel at home. This is why that is also where that book started.
However, at the same time, the insights that I collect by means of conducting research and speaking to people and the reports I studied, I am starting to feel like a more compassionate way of thinking, a human-centered way of thinking, holds an important position in what we think about how institutions work systemically in a broader sense. When I talk about institutions – justice, education, and healthcare – it is a trinity that keeps our society moving forward. And these are the facilities that we are always going to need, no matter what political system we have.
Civilians have the most interaction with the government through these institutions. So how can we shape them? How can we create systems, so that the professionals working in them can be available in a human, emotional way, and so that the people that are receiving help from these institutions also feel seen as human beings and remove these very, in my view, archaic, cold structures that aren’t really serving us anymore? That is the question.
This podcast is produced by the European Liberal Forum in collaboration with Movimento Liberal Social and Fundacja Liberté!, with the financial support of the European Parliament. Neither the European Parliament nor the European Liberal Forum are responsible for the content or for any use that be made of.
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