…Continued (If you missed the first installment, then click here: Journey Through Crime and Punishment, Part I.)
Crime and Punishment was first published in The Russian Messenger, a literary journal, in twelve monthly installments in 1866.
I reread passages of Crime and Punishment repeatedly, spellbound by a master of his craft. Some passages had me sigh and weep. (If I could write like this!) The dialogue between the main character, Raskolnikov, and Sonya, a friend of one of Raskolnikov’s victims, rivals dialogue written by Shakespeare, specifically conversations in Hamlet between Hamlet and Ophelia. I fantasized that if I ever went to prison for murder, then I would want a Sonya by my side. Sonya is much more than self-sacrificing, as literary critics often describe her, and she is no mere serial killer groupie. Forced to prostitute herself to support her family, she understands what people might do under certain circumstances. (Don’t confuse her with the improbable whore-with-a-heart-of-gold archetype.) Sonya is the first person Raskolnikov confesses to, and she is in his mind, in his guilty conscience, in ways that are both disturbing and delightful.
If you Google Crime and Punishment, it’s listed as a book with a “mind-bending plot.”
After reading Crime and Punishment, I developed a practice of reading the entire canon of an author whose work I liked, as well as biographies written about them. From Dostoevsky’s canon, The House of the Dead, and Notes from Underground, made a great impression on me. Inspired by Notes, I wrote an award-winning PEN essay, “ABACADRABA! Or Notes on the War on Crime,” about crime and punishment and how the so-called “War on Crime” was simply messaged in stump speeches by politicians but became policy: more police, more prisons, longer prison terms.
As a paralegal, I saw the reality of more prisons and longer prison terms, and the cost we paid as a society. So caught up did we as Americans become in this political frenzy about crime and punishment, that we earned the dubious distinction of becoming a nation that locked up more people in prisons and jails than any other nation in the world; a nation that held people in prisons for longer periods of time than any other nation in the world; and a nation that sentenced more people, including juveniles, to life in prison without the possibility of parole than any other nation in the world.
As I recounted in Part I, in the latter part of the 1980s, as a paralegal, I worked on a case of felony-murder, of a 16-year-old who had been sentenced to the maximum sentence of 25 years to life. He was one of six teenagers tried and convicted of felony-murder. His court-appointed attorney was grossly ineffective and didn’t provide zealous advocacy, despite the trial judge’s claim, and not simply because he lost the trial – “mere losing strategies do not constitute ineffective representation of counsel,” as courts have declared. All things being equal, at this stage, with my knowledge and understanding of the felony-murder rule and prosecutorial misconduct, I knew I could walk in any courtroom and successfully defend this individual as well as my childhood friends convicted of felony-murder. But the most I could do was provide the best legal advice, which was translated into a motion charging his attorney with ineffective representation of counsel, a motion most attorneys don’t want to submit against fellow members of the Bar, so this teenager had to submit the 440.10 motion pursuant to the Criminal Procedure Law (CPL) pro se, that is, on his own behalf. Because there were issues not part of the trial record, we were able to submit a post-conviction motion, which would go back to the trial court.
It was approximately three months before the judge responded to the 440 motion, in a 30-page decision. A 30-page decision, based on a pro se motion, spoke volumes. The trial court knew that this individual defendant had an appeal pending, and that he could ask the appellate court to grant leave to appeal and to consolidate the 440 motion with his direct appeal if he summarily dismissed the motion without an opinion. After the 440 motion was denied, I personally thought that the 30-page decision would pique the interest of the appellate court and that it would grant leave to appeal and hear the claims of ineffective representation of counsel. Unfortunately, the court, without opinion, didn’t grant leave to appeal. We then asked New York’s highest court, the Court of Appeals, to hear the case. It, too, would not hear the case.
I had been reading Crime and Punishment in between my work on this case. When I finished Crime and Punishment, I picked up Cicero’s Murder Trials. Reading about Cicero’s murder trials was a study in the importance of storytelling in a court of law, in controlling the narrative of the crime, how the story is told. In the case of Pro Cluentio (66 BCE), Aulus Cluentius Habitus was accused of poisoning his stepfather. In this murder trial, Cicero wove a narrative of the crime as complex as a spider’s web, where he sought to shift the blame onto Cluentius’ mother, Sassia, portraying her as morally reprehensible. Cicero also reframed the story about Cluentius, that he was a victim of relentless persecution. (The case was tangled in decades of prior trials, bribery allegations, and family vendettas.)
Pro Cluentio was significant in that it demonstrated Cicero’s mastery of psychological persuasion, and exposed Roman courts as arenas of social power, not neutral justice, which we could argue about the American criminal legal system. On the question of justice, advocates today, even if they have not read Cicero’s Murder Trials, know that American courts are not places of neutral justice, and have reframed this system as a “criminal legal system,” not a criminal justice system.
There is so much to learn from Cicero’s murder trials! From it, I advised pro se advocates to thoroughly study the law, but not to think that their knowledge and understanding of the law, as laypersons, would be respected by the court. In other words, I knew I could lecture and debate prosecutors and judges on the felony-murder rule, but that they would more than likely dismiss me because I wasn’t a member of the Bar. I thus explained to pro se advocates that success would lie in telling a compelling story of crime and hope that the law would be fairly and favorably applied.
As a paralegal, I continued to write about crime and punishment, sending hundreds if not thousands of letters – I lost count – to newspapers across New York State. At 24, I was an expert on the felony-murder rule, having read hundreds of years of case law and commentaries. The editors of The New York Times published one of my letters on the felony-murder rule, and of course a prosecutor responded and weighed in to defend a law that the greatest legal minds have criticized as being, at the very least, superfluous (the typical over-indicting of people charged with crimes), and that it violated the legal principle that prosecutors must prove each and every element of a crime beyond a reasonable doubt instead of bootstrapping a murder onto one of the enumerated felonies that could implicate the felony-murder rule. I also wrote hundreds of editorials. Newsday published one of my editorials as a guest editor, which it entitled, “Endless Punishment is a Crime.” This editorial was about Governor Mario Cuomo granting a “cop killer” executive clemency. In it, I cited Portia’s “Quality of Mercy” speech from The Merchant of Venice. This editorial earned me my first piece of hate mail, from Hicksville, NY! I embraced this hate as an editorial badge of honor. In his letter, the hater referenced race, stating that he didn’t know what my race was, and that he didn’t care, but…. (I learned about ad hominem attacks as a 17-year-old in my first year of college! It was what small-minded people were reduced to when they couldn’t debate the issues.) For the record, Gary McGivern, the convicted cop killer, was white, and Mario Cuomo a proud Italian. My editorial had nothing to do with race. It simply spoke to the political courage of Governor Mario Cuomo to commute the sentence of McGivern so he could make an appearance before the board of parole. Normally, the board of parole would rubber-stamp the governor’s decision to be clement, but in this case, the board of parole, because of political pressure from police unions, denied McGivern release to parole supervision with the stipulation that he would reappear before the parole board in 24 months, the maximum amount of time for a parole denial.
Shortly after I penned that article, Peter J. McQuillan, a respected NYC judge, wrote a law review article, “Felony Murder and the Misdemeanor of Attempted Escape: A Legislative Error in Search of Correction” (15 Fordham Urban Law Journal 821 (1987)), using the McGivern Case as a case study. McGivern had been convicted of felony-murder, as a nonkilling accomplice, according to his attorney’s theory (story) of the crime. McQuillan, in deconstructing the case against McGivern and his codefendant, wrote that the underlying “felony” used in McGivern’s case to invoke the felony-murder rule was a misdemeanor! Misdemeanor-murder? No such thing in the annals of jurisprudence.
With storytelling now part of my legal arsenal, I started reading true crime stories to see how authors told the story of crime…and punishment.
To be continued…
Easy Waters 
Dostoevsky et al., On Crime & Punishment & Prisons
As a sociologist and criminologist, I too am a fan of Fyodor Dostoevsky. He assessed crime & punishment & prisons’ impact on the incarcerated, focusing on the ethical, spiritual, and psychological dimensions of incarceration. He questioned whether retributive justice of suffering, cloaked as rehabilitative practices, transformed people. He did not think so, and his philosophically existentialist and Christian views suggested an intervention of Christian spiritualism in conjunction with retributive justice was needed for individual change. This focus is expressed across Dostoevsky’s great literary works. Along with Fyodor Dostoevsky, scholars Erving Goffman, Michel Foucault, C. Wright Mills, and W.E.B. Du Bios have evaluated the criminal legal system’s (CLS) carceral institutions, focusing on its structural similarities and alignment with society.
A notable quote often misattributed to Dostoevsky and allegedly deriving from, The House of the Dead (also known as Notes from a Dead House), reads, “The degree of civilization in a society can be assessed by examining its prisons.” The quote has been credited to an unknown prison‑reform ‘s mid-1960s’ newsletter as a motto. It resonates deeply with CLS scholars, practitioners, advocates, reformist, policymakers, the incarcerated, and those monitoring the social implications of crime & punishment & prisons. A variation of the above quote reads, “The degree of civilization in a society can be assessed by examining its prisons, suggesting that the social dynamics of social institutions, e.g., prisons (microcosm) mirror the social dynamics of the larger society (macrocosm). Taking a structural analysis or an evaluation of the impact that retributive justice as the significant rehabilitative intervention suggests that that intervention can influence the decision-making process post-release while seeking to engage in economic self-efficacy. Punishment alone does not equate to building economic self-efficacy, it hinders it.
An axiom derived from the above quote motto states, Prisons serve as a microcosm of the wider world. This axiom aligns with the scholarship of Erving Goffman, Michel Foucault, and C. Wright Mills. In Asylums (1961), Goffman characterized prison as total institutions, representing a microcosm of the larger society, suffering from the same social maladies found in society but in exaggerated form. In Discipline and Punish (1975),Foucault, argued that “The prison system is a microcosm of society, where power relations and social hierarchies are intensified and perpetuated”. In a similar scholarly vein, C. Wright Mills, in The Sociological Imagination (1959), saw “society as a macrocosm, mirrors the lives of individuals represented as a microcosm,” reinforcing social norms and expectations, power dynamics and relationships, and standing on the social hierarchy defined by socio-economic status.
A thematic variation of the above motto is W.E.B. DuBois’ critique of the carceral state that reads, the degree of race-relations in a society can be assessed by examining its prisons. In Black Reconstruction in America (1935) he equated the carceral system as a microcosmic social institution reflecting society. Engaging in punitive retribution practices to maintain social control rather than rehabilitation, DuBois saw America’s prisons as institutions that strategically weaponized the criminalization process to sustain a social, cultural and economic hierarchy representative of the pre-1865 south. He also contended that the carceral state contributed to the continuation of the continuation of criminality, while its agents enforced and maintained legalized social disenfranchisement post-release. Lastly, Du Bois’ profound narratives on structural, historical, societal, and cultural realities of life in America, the pre-1865 south, parallel life experiences in prison.
Conceived from the pyre of crime & punishment, & prisons carceral sanctions, the jail house lawyer rises like the mythical Phoenix, litigating in the pursuit of liberty, and litigating and weaponizing the RULE OF LAW and The United States Constitution as tools to defend against CLS agents representing law enforcement, the judiciary, and the sanctioning carceral institution). They are self-taught, spending hours, days, years in prison law-libraries studying, debating, and litigating as pro-se appeal attorneys, seeking their liberty. There is another jail house lawyer, the civil attorney. He is the most hated by carceral agents. For example, 8th Amendment (cruel and unusual punishment) violations resulting from the use excessive force can be challenged in a federal court under §1983 of the Civil Rights Act. A successful §1983 win could result in major reforms, monetary damages against the defendant in their individual capacity, and may result in incarceration. Jail house lawyers have historically litigated their way to freedom. There are jail house lawyers have become practicing attorneys and legal advocates, while others have successfully been awarded winning monetary awards under §1983.
An assessment of crime & punishment & prisons, through the lens of Dostoevsky et al., and the jail house lawyer, compels us to confront CLS contradictions. It advocates for a judicious evaluation of the carceral system’s reliance on the punishment of incarceration as a direct deterrent for those duly convicted of a crime, as memorialized in the 13th Amendment of the United States Constitution, and an indirect deterrent for any considering criminality as a life course objective. Under the guise of just deserts, the CLS functions less as an agent of deterrence or rehabilitation (see DOJ statistics on recidivism), and more as a punishing instrument of disenfranchisement, politicizing and rehashing failed rehabilitation reform initiatives and policies when many of the carceral population have never experienced habilitation. Framing punishment as a socially acceptable form of retribution disguised as rehabilitation, legitimizes systemic inequality, equated to American southern life pre-1865. A more nuanced CLS approach would distinguish crime (an act) from the cultural adaptation of instrumental criminality (Adam and Eve – pursuit of knowledge as a goal) and the cultural veneration of expressive criminality (Cain and Able, an emotional response motivated by jealousy).
In conclusion I make reference to, On Crimes and Punishments (1764), authored written by the 18th-century Italian criminologist and philosopher, and founding father of classical criminology, Cesare Beccaria. He theorized that punishment should be proportional to the severity of the crime committed. As a method of deterrence, it should not be administered excessively reflecting harshness, nor should it be too lenient, resulting in judicial fairness and equal justice. Punishment as a response to criminality should be applied with nuance. Policies and reforms must distinguish between instrumental criminality—goal-oriented actions—and expressive criminality, which often involves violence driven by emotion. Each type operates under a different logic and requires tailored interventions. Also, incarceration as a punishment, via a judicialized criminal sentence, should cease once the sentence has ended. It should not have an indefinite effect post-incarceration. Particularly when the sentencing phase can involve mitigating and aggravating circumstances, significantly influenced by extreme cultural prejudice. Incarceration as a judicially imposed punishment should end once the sentence is completed. Its effects should not persist indefinitely post-release, especially where scholars have discovered that sentencing decisions have been shaped by mitigating and aggravating circumstance influenced by implicit bias.
Dr. Michael G. Pass
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