Law & Enforcement in Imaginary Realms: The Force of Law

by M. Joseph Young

In which the author looks at the many interesting ways to discipline and punish

From the subtitle of this article, you might expect it to be about the police; an important aspect of law enforcement in any legal system, but one which has been addressed in our previous articles. This final entry is more about that which gives law its teeth: punishment. How do we punish our criminals, and how do we justify that? These questions, too, have very meaningful effects on the societies we build, and can seriously affect the lives of characters in our game worlds.

We noted previously that by separating our police from our courts we protect the rights of suspects. Diverging from the feudal model, there are two other significant divisions which have consequences within the game world: are the police part of the army, and are they responsible for the punishment of criminals?

Many of the worlds in which we play have civilian, not feudal or military, governments. If the military controls the internal police force, there is a tendency for law enforcement to be stricter and more rigorous, and to develop more of a "war against crime" mentality: the suspect is the enemy, and is treated as such. Military leaders frequently earn their positions because they are disciplined and orderly, and they expect those same qualities not only in the men who serve them but in the population at large. Disorderly conduct in the local tavern might not be illegal, but characters engaged in it will be considered suspects in any future investigations. After all, drunkenness and other undisciplined conduct is a mark of an unstable person likely to be a criminal, so any characters known for their kick-back parties in the local tavern will be the first ones questioned whenever there's a problem.

Of more concern to the campaign at large, military commanders with internal police authority have a very strong power base and a tendency to view civilian leaders as soft on crime and weak on defense priorities. This itself creates instability, and the general's answer to instability is to depose the weak leadership, remove conflicting opinions, and establish a firm stable government headed by the one person he can trust: himself. Characters are more likely to become swept up in the events of a military coup in such a setting.

There are also notable effects of separating the punishment of criminals from the detention of suspects. Whatever rights citizens have, those convicted of a crime lose many if not most of these. The rights of suspects must be protected, but the rights of criminals are considerably less important. To have the same people handling both suspects and criminals is to blur the distinction--after all, a prisoner is a prisoner, and even if you dress them in different colors they still look pretty much the same. Given the intrinsic laziness of people, this means that suspects will be treated as criminals. Separating the police from the penal system improves the way suspects are handled, because the police only handle prisoners who have rights.

But how do we justify punishing criminals at all? Whatever our method of punishment, it will include elements which would otherwise be criminal--that is, do we kill murderers, beat batterers, incarcerate kidnappers? By so doing, we as a society are doing exactly that which we find criminal in individuals. As a culture, we need a reason why doing what would be the wrong thing under other circumstances is the right thing now. We need a philosophy of punishment. Determining the prevailing philosophy of punishment in your game world instantly gives you a feel for its legal system, and should create some very interesting situations for characters.

From the beginning of recorded law, the philosophy of punishment throughout the world has been retribution: the criminal gets what he deserves. This was the foundation of the concept of justice, that it is "fair" and "just" to punish someone to a degree equal to the wrong he has done. Whether it is described as "an eye for an eye" as in the Mosaic law or as seven days in jail for disorderly conduct, there is a sense under retributive theory that "the punishment fits the crime", that that which is done to the criminal pays for that which the criminal has done.

But in the twentieth century retributive theory of punishment has been replaced by another thread, actually two concepts which together are known as the "humanitarian theory of punishment". Advocates of this view, hailed as the future of criminal justice, claim that retribution is just a nice word for vengeance, and that we ought not pretend that revenge is justice. Rather, they say, the purposes of punishment are to rehabilitate the criminal and to deter others from criminal activity. Critics of this theory observe that under it you can no longer ask whether a penalty is fair or just; what matters is whether it cures or deters. And this has great significance to the characters and the world in which they adventure.

The concept of "rehabilitative punishment" assumes that the criminal is sick, that he is mentally ill and needs to be cured. We don't punish him because he has done something wrong and needs to pay the price; we treat him as a patient, because he is abnormal, divergent from societal norms, and needs to be cured of his incorrect views. The sharp referee will already note that most of his players' characters are a bit abnormal. Just the fact that they'd rather adventure, exploring strange places, at times fighting for their lives, sets them apart from "normal" people. It is also likely that their adventures will take them into places with different religious views from theirs, different political concepts, different philosophies of life. If crime is mental illness, it is a short step to declaring that mental illness is crime - and mental illness can be as small a thing as not seeing the world the way others do. Suddenly the characters are arrested for being adventurers, and taken to the escape-proof "hospital" to be cured of their various aberrations.

Further, if rehabilitation is the goal, criminals may be detained for unspecified periods: you will be held until the experts are convinced that you have been cured. You must change your thinking, or become smart enough to fool them, or escape.

With deterrence, there is an even more important quirk. For punishment to deter others, those others must believe that the individual being punished is guilty of the crime. If the suspect is proved guilty but the population at large believes him innocent, he must be released; to punish such a person will not deter anyone but rather will encourage the belief that punishment is arbitrary, that no one is safe. Yet if the suspect is clearly innocent but believed guilty, he must be punished. This punishment will have the necessary deterrent effect, and failure to punish will increase the perception that you can get away with murder. Suddenly the trial no longer matters; what matters is the public relations campaign. The question isn't whether he did it, but whether the government can convince the people that he did it. And if the accused is one of the characters, or a friend of the characters, it is not sufficient to prove him innocent, nor even to prove someone else guilty. You must persuade the people that he is innocent, so that his punishment is no longer a valuable deterrent. This might make the imprisoned character wish he hadn't been so callous to the townsfolk.

With deterrence there is also no concept of a fair punishment. Social science experts will determine what deters, and that action will be taken. If it is felt that disorderly drunkenness is best deterred by publicly executing the offenders, execution will be the sentence. The guilt or innocence of the criminal isn't relevant. Complaining that it's unfair is wasted effort; it isn't supposed to be fair. The punishment need not "fit" the crime in a retributive sense, and the player whose character is held for punishment will discover that his innocence doesn't matter, the fact that no one was hurt doesn't matter, and the seemingly minor nature of the crime doesn't matter: he is going to be publicly executed for walking on the lawn in front of the court, so that no one will do it in the future.

Having decided why we punish, we need to consider how. It is difficult to read the Mosaic law and not notice how many crimes are punishable by death, or by beatings. To our minds, these are cruel penalties as compared with simple incarceration; but where does a primitive nomadic society lock up its criminals? "Eli, this tent is the jail; could you please pack it on that mule over there? We're moving. When we reach the new pastures, you can set it up and stay in it again."

Incarceration is an expensive form of punishment even in societies which have fixed buildings. Prisoners must be watched and fed and provided with bathroom facilities at minimum (unless they've been sentenced to death by imprisonment). Few small towns will have either the facilities or the manpower to hold anyone beyond a few weeks, and often even a few days will be difficult. Larger countries may have centralized prison systems, transporting characters from the towns in which they are arrested to the strongholds in which they are to be held. And not all cultures believe that prisoners must be treated humanely. Even today, there are parts of the world in which prisons are infested with vermin, prisoners die of disease, are beaten by guards or other prisoners, are underfed and given no "clean" water. A character could die a dozen ways in a very short prison term, and even if he survives, he might be weakened and crazed, considerably less capable than he was when arrested. He may even be unable to earn a living, and thus forced to return to crime...

To mitigate costs, incarceration is often linked to forced labor. The criminal works off his guilt, and subsidizes his own imprisonment.

But many worlds will have alternative means of punishment, and the referee should consider these as well, bearing in mind that the theory of punishment will influence both the method and the amount, and indeed whether the penalty is considered "punishment" at all.

Corporal punishment, although disdained by modern thought, may be the most common form of punishment in history. If you are convicted of a crime, we will beat you the appropriate number of times and be done with it; then you can go. The Mosaic code limited the number of times someone could be struck in a single beating; but the Romans had no such limit, and would use a multi-tongued whip (the "cat-o'-nine-tails") often studded with metal bits, sometimes beating a criminal to death. Criminals have been subjected to many other and equally colourful forms of physical punishment throughout history.

Torture is more commonly used in the trial phase, as a means of extracting a confession from the accused. However, historically such use was intended for the benefit of the victim. If the accused had been condemned to death, it was regarded important that he confessed his crimes before facing judgment in the afterlife, so that he could save his soul. It was also considered necessary that the felon "unburden his soul" by revealing the names of others who shared his crimes, leading to further investigations. A dying confession from a tortured victim giving the name of a player character will start an investigation; no honest inquisitor would believe that his victim would have lied just to get revenge on an enemy.

But there's another form of corporal punishment, intended to have permanent effects. Those convicted of certain offenses in certain cultures are disfigured, commonly by branding, so that others will know of their crimes on sight. More severe disfigurements are tied to the crime: cutting off the hand of a thief, blinding a spy, castrating a rapist. The character who suffers such a penalty in a primitive setting might not survive; if he does, his career will ever after be very different.

Death is the ultimate corporal punishment; but it serves a practical purpose as well. In primitive and nomadic cultures, there is no way other way to deal with criminals who are likely to continue to cause harm and havoc in the future. You can't imprison them; you can't drive them away with any certainty. They must be stopped, and this is the only way to do that. Looking to the future, as the world expands it becomes easier for criminals to hide, to move to other places, to disappear in another city, another country, another world. Putting them to death is the practical and economical solution to this - and it also has a strong deterrent effect.

There is another oft-unasked question about capital punishment. Should it hurt? For centuries, Western thought has been that execution is punishment in itself, and should be as humane as possible. But to some cultures this is nonsense. It is the pain of execution which is the essence of the penalty, and some crimes warrant more hideous forms of death. A quick painless death would be mercy in such a world. And the more uncertain life becomes, whether for plague or poverty or warfare, the more attractive is a quick and painless execution - and the more so for those who believe in a better afterlife. Committing a particularly heinous crime (or at least confessing to it) could become a way out of the horrors of the world on to a new life.

But for many, the death penalty is unacceptable. Some societies, unwilling to do to another what they condemn, resort to banishment: the criminal will leave this land and never return, or he will face more severe penalties. In ancient times, the alternative was death, and in many cases it would have been preferrable. To be stripped of all possessions, social status, home, and contact with family, driven from all that is familiar into places where nothing fits your own concept of civilization, not even the language spoken, and to be viewed by those around you as an alien, is to die in all ways except the most basic. Without any means to support yourself, your death was fairly likely in any case.

Today the concept of banishment has been reborn: one city in the US has determined that anyone involved in gang-related activities within its borders will have to choose between leaving the city forever or going to jail. This has underscored the problem with banishment in a populous world. When there were barren unsettled lands, the banished individual would be on his own; but when city borders on city, country on country, such deportation amounts to foisting your problem off on someone else, and they will not be happy about that. Even with such unsettled lands, once enough criminals are banished they will form a society of their own, and they might return in force to take the land from which they were driven, and the homes they once knew.

In a variation on this theme, some countries have created distant penal colonies in undeveloped places. The most famous of these is Australia, where for generations the British deposited criminals after America stopped accepting them. There have been similar islands and isolated areas used this way in the past, and science fiction settings have suggested that inhospitable habitable planets could be so used in the future. Unfortunately, such colonies have a way of becoming countries of their own. Some might become bleak, terrible societies in which survival and the law of might lead to violent power struggles. But the children of criminals are not always criminals, and the necessities of life will create economies, governments, and cultures wherever people are massed. And when the new country decides it doesn't want any more criminals from the old one, the system breaks down. Perhaps another place can be found; but such real estate becomes scarcer as population grows.

In many cases, the punishment may be economic: let the criminal pay for his crime in cash. It begs the question, how much is a life worth, but it may be that even for murder a payment to the victim's surviving family and an additional payment to the state could settle the matter. This is a very pragmatic system in many ways. The young widow would rather have the life of her hard-working husband than any amount of money; but if she is paid more money than that husband could have made in his lifetime, the killer has been punished and the harm at least mitigated. In modern courts, fines paid to the state are usually considered separately from restitution paid to the victim. But for many crimes and in many systems, money may be not merely sufficient but necessary payment for a crime.

Forced labor may appear again here. The criminal unable to pay may be ordered to work off the debt, either in state-run work programs, or in servitude to the victim. Some might allow the criminal to be sold into slavery, the proceeds to go to the victim (or the judge).

At the lowest level of punishment, some cultures rely on humiliation. A person put in the stocks in the middle of town does not suffer much in terms of physical injury; and he will lose at most a day or two. But the people will see him, the children will mock him, and all will remember the face of the man held in the stocks that day. The punishment is inflicted upon his reputation. In other cultures this may be done in other ways. Branding has been used in this way, clearly marking the criminal with the nature of his crime, and in some cultures stripping him of many of his rights. The character once caught and marked for his crime will be greeted with suspicion wherever he goes in the future, and so will his companions, who consort with a known criminal.

In the Orient, criminals condemned to death were not usually killed, but ritually "declared dead" as the sword touched the backs of their necks, stripped of all rights, status, and property, and left as outcasts--dead but for the fact that they still live. Many innocent suspects in modern times have complained of damage done to their reputations by television news coverage; but such media could be used intentionally to broadcast the offenses of criminals, to announce their crimes to the world. Megan's Law (an oft-copied rule that requires previously convicted sex offenders to reveal their identities within the communities in which they live) has been hailed by many as a step toward the protection of children, but it is also an ongoing punishment of the criminal. The old concepts of branding could not have been much more effective in this regard.

In most worlds however, criminals will be imprisoned, either for a term of time or until experts choose to release them. But sci-fi settings have suggested another concept, the concept of timeless imprisonment.

The idea of timeless imprisonment is to remove the criminal from society, and to return him at some point in the future, without the criminal experiencing time. The typical methods are suspended animation and temporal stasis. But in this case, how is the individual punished? Alternatively, how is he rehabilitated? From a practical perspective, it makes little sense. There are people who would pay for the privilege of waking in the future without aging a day. But from a plot perspective, it opens some interesting possibilities. Player characters convicted of a crime could awaken in a world entirely different from the one in which they were arrested, possibly finding their sentences commuted because what they did is no longer criminal, or possibly finding that they have been away for many centuries, forgotten when the government which incarcerated them fell from power. Even if they don't have fabulous resources from interest accrued on their bank accounts, it could be the beginning of an adventure in which they are trying to find treasures that they, or someone else, hid long before, with few of the old landmarks to guide them. Alternatively, aging characters could be confronted by a vengeful enemy out of their past who hasn't aged a day. This pits their familiarity with the world around them against his youth and vigor. Even new characters can be confronted with an infamous criminal from the past; back-writing a relative of one of the characters who was instrumental in his capture gives him plenty of motive to pursue the party.

As you can see, the consideration given to how crime is defined, adjudicated, and punished is certain to enrich the role playing experience at many points. At each step of the legal process, game worlds are defined, characters are tested, and adventures are inspired. Sometimes players will find that the law is on their side, while at other times it will be against them; but if the referee has thought through the legal systems of his game world, it will always be present, constantly supporting, opposing and challenging characters throughout their adventures.

M. Joseph Young is co-author of Multiverser:  The Game and Vice President for Development of Valdron Inc.  A graduate of Widener University School of Law, he has written extensively on many subjects including role playing games, law, and theology, with much of that posted to the web and largely indexed for convenience.  This is the third and final part in this series.