I was going to resist commenting on the Polanski affair, or maybe limiting comments to any issues raised by his extradition. There are too many appalling apologies out there condemning his arrest, and far too many attempts to minimize his crime, that make me reluctant to wade in to the fray. Let’s be clear: Polanski forcefully and statutorily raped and sodomized a 13 year old girl that he had drugged, over her repeated objections and attempts to fake an asthma attack to get him to stop. This man deserves no one’s sympathy or defenses of his character.
But completely ignoring the details of the crime, having a 30 year fugitive from the U.S. arrested while on a trip to Switzerland does make for an interesting thought experiment. There is a great post at Cheap Talk that I wish I’d written:
Should punishment depreciate as time passes? As usual the answer probably depends on whether you think of punishment as justice or as a mechanism to internalize externalities.
The post points out three interesting questions this raises. First, after a span of thirty years, we are effectively a new person from who we were before; can a punishment for a crime committed half a lifetime ago then serve any purpose? Second, might the long delay between act and punishment be an argument for increasing the punishment? After all, thanks to the human tendency to engage in future discounting, a punishment of equal severity that is administered later in time is effectively a lesser punishment than one administered immediately. And, third, given that the cost of a prosecution spanning three decades (and three countries) is much greater than the cost of a quicker one, but also given that prosecutors who have all the time in the world are likely to be much more successful in getting a case together, there is always the risk that “the freedom to delay induces prosecutors to optimally impose costs on the innocent [and on the criminal justice system as a whole] in order to maximize chances of conviction.” Should we then be more hostile to such delayed prosecutions, in order to keep this bad incentive in check?
(Any dangers in falsely proving guilt that are posed by decay in the quality of evidence are minimal, the post points out, when the defendant has confessed to the crime as Polanski has.)
To expand on this some, the three major justifications for criminal punishment are rehabilitation, retribution, and deterrence. (You can add others in there, such as compensation and denunciation. But compensation is more civil in character, and denunciation can bit fit under both deterrence and retribution. I’ll stick with three categories for now.) A delay of 30 years inevitably changes the rationales for each one.
Rehabilitation is the weakest of the three, by far. There is no evidence I’ve seen to suggest Polanski has been a serial rapist during his years on the lam, and at 76 years old I’d be willing to accept for purposes of argument that he no longer is a threat to others.
Retribution is a harder question, although made somewhat simpler by the fact that the victim involved has publicly forgiven Polanski, and would rather be out of the spotlight than to have the whole ordeal gone through again. However, retribution isn’t merely for the benefit of a criminal’s victims. “Retributionists regard punishment, like justice, as an end in itself. In fact, they regard punishment as a requirement of justice. Retribution is the philosophy that the offender deserves to suffer. The physical harm inflicted on the offender or the damage done to his property is not a means to some other end such as compensation, deterrence, or reform. Punishment itself is the end.” Retribution also serves to sake society’s thirst for vengeance — to give people an outlet for such desires within our system of courts and law, rather than to engage in vigilantism to achieve it.
As is clear from all the meta-commentary over Polanski’s arrest, there are a lot of strong feelings out there about the necessity of punishing Polanski. And remember: this is a double headed crime here. Rape is not the only crime he committed, he also became a fugitive by skipping out before his sentencing hearing and fleeing to France.
So whatever muting effect three decades might have had on the desire for retribution over the rape is more than outweighed by a widespread feeling of anger that he has managed to escape justice for so long. Under this approach, Polanski’s crime was not committed 30 years ago, but rather began then and has been committed anew every day since then that he has avoided standing trial. During that time, he has lived life as a free man, under his true name, making movies, and winning Oscars. Unlike most decent fugitives, he hasn’t kept his head down, acquired an alias, and quietly made a new, honest life for himself.
American egalitarianism is most often expressed by the idea that “no one is above the law.” Polanski attempted to prove that this didn’t apply to him, and for thirty years he succeeded. The loudest and angriest cries for blood that are going on now stem not from the underlying crime itself, but rather from his successful evasion of punishment for so long. Moreover, there is a feeling that it was Polanski’s wealth, fame, and foreign connections that enabled him to do so — and there is nothing more sure to raise American desire for retribution than that.
Deterrence would also be served — at least in some measure — by punishing Polanski, although for the rape this would be of only minimal justification. While I do in some respects believe in the ‘economic lawbreaker,’ where a criminal’s willingness to commit crimes varies with the expected punishment to be imposed, I cannot for the life of me conceive of a rapist who stays from committing a crime because, “well, if I commit it, but get caught, but then escape to France for 30 years, I can still live there as a free man while eating good bread every day, so I think it’s worth it.”
Rather, the deterrence value would be against would-be fugitives. Had Polanski not fled to France, he almost certainly would have been sentenced to prison — but he would almost just as certainly have been released from it twenty years ago, likely more. Instead, Polanski will now probably die in prison. And for the last 30 years has been unable to engage in extensive travelling, always living in fear of capture and extradition. He may have had a nicer life as a fugitive than most, but he was still a fugitive. Let this be a lesson to other accused defendants, then: go through the court system, serve your time now, and one day you will be a free man again.
All that aside… The most important and profound statement I’ve seen yet on the matter comes from Polanski’s victim.
“The one thing that bothers me is that what happened to me in 1977 happens to girls every day, yet people are interested in me because Mr. Polanski is a celebrity.”
Amen. Polanski’s crime is hardly sui generis. Although punishing Polanski would be warranted, it’s only a drop in the ocean towards achieving justice .