Attempts to analyze punishment in terms of utility and rational purpose generally fail to account for the systems of “Justice” we actually have in place. Criminal justice systems have irrational, quasi-religious functions as well.
Vendetta and the Oresteia
Consider Aeschylus' Oresteia trilogy (Agamemnon, Libation Bearers, Eumenides).
Aeschylus’ story begins with the Greek expedition across the Aegean to war with the city of Troy. Fierce winds blow in the faces of the warriors and the sea boils before them. Poseidon, the god of the sea, will not let the fleet sail until he is propitiated with a human sacrifice. Their king or warlord, Agamemnon, offers his daughter, Iphigenia.
In fact, the curse on the house of Atreus can be traced back into hoary myth, with the tale of King Tantalus killing his son Pelops, cutting him up and serving him as a feast to the Gods. The Gods revive Pelops (with an ivory shoulder provided by Demeter, who had eaten his shoulder before discovering his identity). The resurrected Pelops becomes the ancestor of Agamemnon (with a considerable amount of sibling crime, cannibalism and vengeance in the intervening generations, depicted in cartoon format here: http://mkatz.web.wesleyan.edu/cciv110x/odyssey/cciv110.Pelops.html).
Agamemnon’s wife, Clytemnestra, enraged by the sacrifice of her daughter, and by Agamemnon’s abandonment for ten years while fighting the Trojan war, takes a lover Aegisthus, and with him plots to murder Agamemnon and seize the throne. She rolls out the proverbial red carpet for Agamemnon and then stabs him to death.
Agamemnon and Clytemnestra’s son, Orestes, guided by Apollo through the Delphic Oracle, returns to Mycenae to avenge his father’s death. Disguised as a messenger announcing his own death, Orestes surprises his mother and her lover and kills them.
The Olympian gods are pleased at this result because Orestes has enforced the sanctity of Clytemnestra’s marriage vows. However, Orestes has violated a more primordial bond than the marriage contract: he has killed his own mother. The Erinyes (Eumenides “Kindly Ones”, or Furies), cthonic Goddesses decended from Gaia or the Fates, but in either event representing more fundamental principles than the Olympian gods. The name, “Kindly Ones” is a euphemism, for they are anything but kindly: their names are
Megaera (jealous), Tisiphone (blood avenger), and Alecto (relentless). They track Orestes by the smell of his mother’s blood: "We drive matricides from their homes ... Since a mother's blood leads us, we will pursue our case against this man and we will hunt him down ..." Aeschylus, Eumenides, 210, 230.
The drama culminates with a trial, presided over by Athena. Athena is female, and therefore acceptable to the Furies as a mediator, but also, since she was born of Zeus without a mother, also acceptable to the Olympian patriarchy. Athena decrees that Orestes be spared, so that the cycle of violence must end with him, but the Furies be propitiated with a blood sacrifice.
Application to the Criminal Justice System
In Anglo-America law, criminal proceedings are not brought in the name of the victims or their families. We have entirely separate, “civil” proceedings in which compensation can be sought for the injury to the victim or the victim’s family. They are brought in the name of the sovereign: as in “The Queen v. Orestes” or “United States v. Orestes” or “People v. Orestes”. While proof of a crime is required, the offense is not considered from the standpoint of the victim but rather as breach of the peace, or the conduct of lawful behavior decreed by the state. The nature of the crime is determined solely by statute, in terms of the conduct prescribed by law, and not in terms of the compensation for the suffering of the victim. The crime is in the killing, not the death. Hence the crime is not the result, but the bad act and the guilty mind with which it was committed.
Consider the demands of enraged families: Mark Klaas, father of the victim Polly Klaas, the activist who agitates tirelessly for “three strikes” and other punitive sentencing schemes; the family of Nicole Brown Simpson, screaming for blood in the OJ trial. Clearly the criminal proceedings are not brought on their behalf, nor are they the judges of what constitues fair and satisfactory punishment. They are the Erinyes of today. They are barred from the courtroom, the proceedings are governed by blind Justice, the modern day Athena of the nation-state.
The state does not “avenge” the wrongs suffered by the victim. Punishment is intended to deter and incapacitate, to preserve “the King’s Peace”. To the extent that it appears that “vengeance” is the purpose of a criminal proceeding, consider it the “blood sacrifice” to the Kindly Ones, to end the cycle of violence.
A truckload ofOresteia links: http://www.geocities.com/tmartiac/thalassa/oresteia.htm