When the good Quakers of Pennsylvania decided to abolish the brutality and caprice of existing prisons, they replaced it with a system designed to prevent the creation of criminal association, and cultures. Prisoners should be encouraged, with solitary confinement in clean, featureless cells, and lack of human contact, to develop a relation with God, and become penitent.
So, the modern penitentiary was born. It has been much modified since, but even in an era when God remained real, many saw it as a horror. In American Notes, Charles Dickens, passing through Pennsylvania, wrote of the system’s inmates:
He sees the prison officers, but with that exception he never looks upon a human countenance, or hears a human voice. He is a man buried alive; to be dug out in the slow round of years; and in the meantime dead to everything but torturing anxieties and horrible despair.
God has departed, so even the Quakers’ genuine belief in a real relationship to an other has gone. Cells are shared (for better and worse), prisoners allowed to socialise. So wasted time, nothing time, and its passing, has become the main punishment, solitary confinement an internal one. It remains an entombing.
Brett Button is about to be entombed in that system, and few except his family and remaining friends will care. Button was the driver in the Hunter Valley bus crash that killed 10 people returning from a wedding. What Button did has torn a hole in dozens, maybe hundreds of lives, created a rip in being. There are permanent injuries. A wedding, every culture’s primary mode of social fusion, binding families together, has become a blast zone, spreading futility and despair through many lives.
Brett Button was on tramadol, a strong and addictive opioid. The drug appears to have both disinhibited him, and interfered with his reaction time. He drove riskily as passengers pleaded with him to stop. He didn’t, and the entirely avoidable disaster followed. For this, he has been jailed for 32 years, with a minimum term of 24. He is 59, with health problems. He will almost certainly die in prison.
He will be a hate figure, and need special protection, which means substantial solitary confinement. We are condemning this man to endless hours of separation from all human life, with his own thoughts. Nothing in the judge’s sentencing is in contravention of the guidelines, or of our wider cultural perceptions about for what and how long people should be jailed.
Therein lies the historical and cultural problem we face. Are we really convinced that justice, in a wider sense, is being done, by thus punishing a man, not for the intent and purpose of the crime, but for the fact that it had the worst outcome possible? Consider this. We do not as a society have “life without parole”, or 50-60 year sentences of the US type. So there is no real separation between the punishment for Button’s deeply, selfishly, stupid, wanton, irresponsible, lethal act, and those of killers whose acts are radically evil in intent and execution.
Brett Button has gained the same sentence as a man who stalks, plots to, and kills his ex-partner, with maximum sadism, in front of their children. He has the same sentence as fascist murderers who stalk and kill migrants because of the colour of their skin. He has the same sentence as a contract killer, who kills a target without regard for why, and kills any witnesses who get in the way.
This is, of course, because he has been convicted on multiple counts, and these have been run consecutively. This puts the heavy weight of the punishment on the consequence of the act, not the intent of the act itself — again, in sentencing terms, quite properly. But consider how much caprice such a deep cultural setting introduces into the process of justice.
The contract killer or the terrorist who is thwarted in their actions just before they kill someone will get pretty much the same magnitude of sentence they would get had they succeeded, decades rather than years.
But Brett Button, had he been pulled over before the accident happened, and removed from the bus, would have got nothing like the punishment he is now getting. Driving under the influence? Reckless driving? Because he was driving a bus full of passengers, it would have been a serious conviction. There would probably have been jail time. Would it have been decades in solitary cells and gray concrete corridors, leading to death? Of course not.
So by throwing a man into the abyss, so as to contemplate his own death, alone, for decades, culturally we are blunting the distinction between evil and other types of acts. If butchering a person in cold blood, having planned such an event for months, attracts the same sort of sentence as being disastrously, stupidly, selfishly irresponsible with your medication and your work responsibility, then surely we are undermining any collective capacity to condemn sadistic intentional murder as any sort of distinct and uniquely evil and nihilistic act.
Indeed, what we are doing is sociologising such evils acts, breaking them down into their components by comparison. If extreme punishments are not reserved for extreme crimes — extreme in intent and outcome — and are applied to crimes of utterly different intent, but with similarly horrific outcomes, then the effect is to break down the evil act into its components, to render it as a product of conditions, rather than the bringing of total destruction into the world.
No-one has suggested that Brett Button went out to kill his passengers that day. This was not attempted suicide-by-driver/pilot/captain as sometimes occurs. His actions were decomposed: the disregard for the effects of the drugs he was taking; the failure to not go to work that night; the failure to find some residual rationality as he drove, on strong opioids, and pull over. But each of these is a foolish and selfish act that many people have done. Who hasn’t driven while texting/phoning, and then laughed a little guiltily about it? Driven home on edibles or G&Ts.
So such an event is a series of specific small acts. Whereas the evil murder is a unified act, in which all the parts have their meaning from the whole: to murder someone in maximum terror, pain and despair, to annihilate meaning. Yet it is, in some sense, culturally decomposed, by being comparable, in prison time, with Butler’s sentence.
This process shows the paradox of justice in the contemporary period. While the methods of punishment are modern, the legal system remains freighted with medieval, theological conceptions of the soul, magical and fatalistic thinking, which allows us to tolerate, with an untroubled conscience, the hideous conditions we apply to prisoners. It would be impossible to have a justice system which made no distinction between the occurrence and non-occurrence of an intentional act, or put total weight on motive. Nevertheless, how we do this needs rethinking, across the West, in fundamental ways.
Really, the occurrence is “sticky” with regard to events. You get into a fight, lose your cool, punch someone in the head and they die, and when you are convicted, the judge will recite a narrative about you, which to some degree reads back the fatal nature of your act into not merely your intent, but your character, upbringing, and de facto (and de jure) your soul. But if the ambos arrive quickly, someone pulls you away, and your victim survives, and is walking around in a few weeks, you can get anything from attempted murder, manslaughter or merely a serious assault conviction.
Then the judge will talk about your aggressiveness, selfishness, stupidity, etc etc, but make an entirely different sort of sentencing. Your civil fate will be entirely different. But the act was the same. Even better, if you are convicted of murder, but this is later reversed on appeal — your victim was drunk, challenged you to the fight, slipped and hit their head before it started — the entire judicial-theological judgment on the nature of your soul will be magically rescinded.
The whole thing, as a cultural process, is like something out of the 1400s. European “inquisitorial”-style courts have gone some way to removing this ballast from the system. In the Anglosphere adversarial system, it remains, since it is held that adversariality will grind away the prevarications until the truth emerges, the lens coming out of the glass. It does not, and as notions of action, free will and subjectivity become more complex, the adversarial-dominated process silts up absurdities. It has a class aspect, focused on crimes and damage that are a product of individual physical action. Complex social action escapes the model. A bus driver gets 32 years for causing a truly hideous event. No-one will be prosecuted or convicted for the mass but distributed suffering caused by the amoral, wanton application of robodebt.
One could not blame the relatives of Brett Button’s victims from wanting all the horrors of the world visited upon him. There is no question that he deserves substantial jail time. But we do not let the victims determine the punishment (though excessive use of victim statements is recrudescing collective justice into retribution and vendetta justice), and Button’s three-decades of living death sentence appears more a form of human sacrifice, produced by the correct application of the system itself. Yet after we have done this, the dead will not rise from the wreckage and to their scattered bodies go, the rip in lives will not be healed. We will be made more carceral, vengeful and regressed by the application of our culture and law. And a number of very violent men will see that you can get three decades for being a selfish, stupid, misguided fuckwit. So how bad, really, is what they are planning on doing?
As before, anything but penitence.
What do you make of the sentence handed down to Brett Button? Let us know your thoughts by writing to letters@crikey.com.au. Please include your full name to be considered for publication. We reserve the right to edit for length and clarity.
