Vol. 11 No. 3 (March 2001) pp. 120-123.

JUSTICE AND THE PROSECUTION OF OLD CRIMES: BALANCING LEGAL, PSYCHOLOGICAL, AND MORAL CONCERNS by Daniel W. Shuman and Alexander McCall Smith. Washington D.C.: American Psychological Association, 2000. 143pp. Cloth $39.95. ISBN: 1-55798-693-2.

Reviewed by Fran Buntman, Department of Political Science, University of Akron.

What should societies and individuals do about criminal wrongs committed in the relatively distant past? JUSTICE AND THE PROSECUTION OF OLD CRIMES is an interesting and thoughtful if slim volume that explores this question combining moral, legal, and psychological concerns, research, and insight. If it is not unfair to summarize the nuanced arguments of authors Daniel Shuman and Alexander McCall Smith, their answer would be that old crimes should sometimes, but not always, be prosecuted. Prosecution should not take place if it violates fundamental tenets and practices of justice. If legal action must take place, the trade-off among different goals of justice must be recognized. The dimensions of justice include law, morality, and psychology or mental and emotional health. As law, justice demands criteria such the defendant's right to a fair defense if time has damaged or destroyed evidence. As psychological well-being, justice would not, for instance, favor knowingly reopening or worsening the wounds of victims who have found some healing after the crime. Where justice is morality, it may be necessary to see that forgiveness, for example, may both be a "moral duty" and allow for "personal restoration" (p. 12). The opposite applies too: prosecution should be sought if it promotes justice, whether in legal, moral, or psychological senses. Shuman and Smith set out to marshal some of the questions and answers involved in making these choices.

By old crimes, authors Shuman and Smith mostly mean crimes where the wrongdoer and victims, or their immediate relatives, are still alive or what they refer to as the "morally resonating past" (p. 27). (Although there is brief mention and consideration of reparations for crimes of preceding generations, such as colonial genocide or slavery, as well as posthumous conviction or clemency for perpetrators or victims of old crimes, their book does not consider the crimes of generations ago.) They identify their primary focus as on war crimes and sexual offenses, especially against children. Both of these crimes are characterized by a high likelihood that the crimes neither will nor cannot be reported or prosecuted until a considerable time after they are committed.

Nevertheless, they are skeptical about repressed memory claims of sexual abuse that they argue have little scientific support and face considerable scientific criticism. They furthermore criticize courts for assessing repressed memory claims by giving legal reasoning priority over serious academic studies of memory (pp. 66-70). Claims of repressed memories of sexual crimes illustrate their belief that the perspectives of psychology and the dictates of morality are sometimes more important

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than legal arguments. At other points, as noted in the emphasis on a defendant's right to evidence to refute a charge (whether civil or criminal; they deal with both), legal norms must trump other norms of fairness. As well as war crimes and sex offenses, JUSTICE AND THE PROSECUTION OF OLD CRIMES considers other old crimes, most notably murder and large scale human rights abuses. For the most part, they consider "ordinary" criminal murder (as opposed to politically motivated and state sponsored killings) as warranting prosecution irrespective of how much time as passed, with few, mostly technical, exceptions such as the availability of evidence. Indeed, they consider the general absence of statutes of limitation for the prosecution of murder to be indicative of the intrinsic societal belief that murder is a crime that can never be assuaged through the mere passage of time. Nevertheless, when murder is committed as part of crimes of war or crimes against human rights, then Shuman and Smith argue that other factors come into play although the murder is no less reprehensible. These other factors tend to center around societal needs. They therefore recognize, for instance, that the lack of prosecution of human rights abusers under apartheid may be necessary to the ability of South Africa to find a path beyond the violence and divisions of the past.

Shuman and Smith argue that there is a time and place for political and social concerns to trump personal and emotional needs. I was therefore particularly struck by the applicability of their chapters on forgiveness not just to public affairs, whether criminal or political, but to private and personal feelings of being wronged, and the appropriate responses to those emotions. The book sets out to address wounds in the body politic caused by individual or state crime. It is thus a notable if perhaps unintended achievement that the meditations on forgiveness are insightful well beyond the political to the personal and non-criminal.

When we consider the personal, and crime, it is usually through a focus on crime victims. The authors' very concern with the devastating wrongs that crime can and do bring highlights their utmost regard for victims of crimes, new as well as old. Moreover, the focus on old crimes and the necessity of healing indicates their recognition that the damage from crime can and often does last a very long time, both for society and individuals. Although Shuman and Smith do not proffer this reason, nevertheless I got the impression that part of the book's goal was to demystify the status of victims in responding to crime. They identify two shifts that partly explain the heightened focus on questions of prosecution for crime victims. Increasingly religious concerns about forgiveness are echoed in the psychological sphere, where forgiveness is often seen as therapeutic (p. 12). Moreover, there are growing demands on criminal law for it to provide a therapeutic function (p. 14).

Although the authors recognize that legal action, both criminal and civil, may provide healing and closure for the crime victim, they make two vital points. First, the primary functions of legal procedures are not therapeutic. Criminal trials and the associated legal infrastructure should continue to protect the rights of defendants, first and foremost, and not victims (p. 110 and throughout). Although crime victims achieving therapeutic goals in criminal trials of the perpetrator is a positive goal if it can be achieved, the integrity of fundamental legal rights and processes cannot be displaced by a healing goal. Second,

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in chapter seven they raise an important question about the supposedly "common-sense" assumption that "bringing the perpetrator to justice is an essential component of a victim's recovery" (p. 101). Shuman and Smith point out that there is little research to test this widely-held assertion and belief, and there is plenty of reason to doubt its veracity, and perhaps even more so for old crimes. In this light they make two calls, one to researchers, especially psychologists, and one to the criminal justice system, especially prosecutors. They want far greater study of the question of whether justice and punishment is therapeutic for the victim, and they want crime victims to have a greater role in deciding whether or not to prosecute old crimes in those, rather than new, cases.

The apparent healing effect of criminal prosecution on the victim and society relates to long-standing theories and philosophies of punishment, which are nicely surveyed and integrated into the book's argument. Shuman and Smith spend most of their discussion of punishment examining the meaning of retribution. They emphasize retribution needs to be distinguished from revenge (the desire to harm and hurt the perpetrator) and understood as an attempt to normalize the moral imbalance in society caused by crime. Retribution involves recognizing the power of punishment to express social disapproval, reassert the value of the wronged victim, vindicate criminal law and the society itself, and denounce crime and criminals (chapter 2). It is these mechanisms that lie behind retribution's claim to restore moral balance.

Given the authors' concern with moral balance and healing, it is surprising that they did not consider the applicability of concepts or practices of restorative justice in their arguments. Restorative justice emphasizes that crime reflects a social wrong and seeks to restore balance among the harmed parties. For restorative justice, the greatest victim of crime is the direct and primary victim, although society and even the offender reflect and experience the damage that crime brings. As articulated by its more classic proponents, such as John Braithwaite's "reintegrative shaming" (1989) or Howard Zehr's restorative justice (1990), as well as in the growing number of groups -- academic, criminal justice, and community -- all over the world, restorative justice includes the moral, psychological, and legal concerns that animate JUSTICE AND THE PROSECUTION OF OLD CRIMES. Moreover, although much of the focus of restorative justice is on current and ordinary crime, especially juvenile crime, it is often likely to be very suitable for the old crimes Shuman and Smith address. Many sex and human rights abuses involve crimes within families and communities. Therefore the crime hurts not just the individual victim, but the unit concerned; family, community, country, or region. If the solution to crime is imprisonment or some other method that removes the perpetrator from the family or political unit, restorative justice asserts that the damage of that crime may be increased, because now the unit is shattered rather than healed. Likewise, the adversarial relationship of a traditional trial may further disrupt or damage healing, because it is in the interests of the accused to de-emphasize culpability, rather than acknowledge harms and wrongs against the victim, individual or collective, and atone for these. Therefore if identifying, acknowledging, and punishing the crime could occur by involving the perpetrator, victim, and unit (family, society, etc.) damaged by the crime, the restoration of trust and mutual or respectful relationships may be possible, and would be a desirable psychological, moral, and even legal

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outcome of confronting many of the old crimes the authors identify. Indeed, they note a small but striking study that showed forgiveness of perpetrators helped incest victims in their recovery (pp. 12-13). On a larger and more overtly political scale, South Africa's Truth and Reconciliation Commission (TRC), which the authors admire and use to illustrate responses to the old crimes of apartheid's violence, has many components of restorative justice, both in background philosophy and in practical function. Although the TRC is not a model of restorative justice, many of the elements that have made it function and succeed, however partially, are elements consistent with restorative justice.

This book covers considerable ground in a short space and from the perspective of many disciplines. It is therefore often somewhat superficial. I found the more I knew about a topic, the more comprehensively or precisely I wished it had been covered. A case in point: although Shuman and Smith are aware of the importance of politics for their study, politics does not get the focus it deserves as structuring the questions and answers with which the book is concerned. Other complaints I had about this book were minor. However, for a relatively short book, other topics are covered, not all of which are noted in this review. I was glad to have the opportunity to read JUSTICE AND THE PROSECUTION OF OLD CRIMES, which contributes to all three disciplines it formally addresses - law, moral philosophy, and psychology - and many other besides, including my own, politics, and theology. Ecclesiastes 3:1-22, insists that there is a "time for everything," including "A time to kill and a time to heal .. A time to love, and a time to hate; A time for war, and a time for peace." This refrain echoed through me as I read this book, although the authors almost entirely avoid religious or spiritual references. Nonetheless, I think the book may usefully be understood as a guide to identifying when is the right time, and what is the right context, to prosecute old crimes, in the quest to balance individual and collective or political needs for morality, law, and emotional peace.

REFERENCES:

John Braithwaite. 1989. CRIME, SHAME AND REINTEGRATION. Cambridge and New York: Cambridge University Press.

Howard Zehr. 1990. CHANGING LENSES: A NEW FOCUS FOR CRIME AND JUSTICE. Scottdale, Pa.: Herald Press.