Wednesday, June 8, 2016
A fabulously wealthy Middle Eastern gold merchant, Reza Zarrab, has been indicted for criminal trial in New York. But he does not fancy the idea of awaiting his court date in such accommodations as are usually provided by the criminal justice system. He would prefer a luxury apartment to Riker’s Island, and would propose to pay for it himself, relieving the taxpayer of any financial liability. He also offers to put up a huge bail bond and even finance special police guards to guarantee his appearance in court. He will gladly wear a GPS tracking device. He actually represents a class of wealthy defendants. I read about this in the Times, and as usual, or at least often, the numerous readers’ comments in the on-line edition were as engaging as the article itself. Most comments rejected Mr. Zarrab’s proposal for a privately financed gilded cage with scorn or indignation. The recurrent adjective was unfair. My own initial reaction was along these lines—until I thought about it for a moment.
The guarantee to a “speedy” trial has become a dead letter, but the presumption of innocence need not follow it. There are two plausible justifications for pre-trial detention. A guilty person might run away, thus frustrating justice. There is also the possibility that such a person might commit further mischief, such as the destruction of evidence or suborning of potential witnesses. Neither justification can be convincingly invoked in this instance. Punishment is not an acceptable justification for pre-trial detention, since it obviously assumes guilt. But Times readers want to punish Mr. Zarrab for being obnoxiously rich and having resources others lack. Is this a matter of “fairness”? Some people get to go to Yale, others to Dade County Community College, and most to no place at all. I’m willing to part with an extra hundred bucks for six inches of supplementary legroom on a United flight. Is it unfair that somebody else can regularly afford First Class? The morality of the one-percent solution to pretrial detention would seem to me to be an honestly open question.
Our penology is uncertain of its goals. Punishment? Reformation? Protections of Society? For the most part the prisons of earlier centuries much more frankly had to do with money. Serious malefactors could be chastised with horrible corporal punishments or dispatched by hanging, decapitation, compression, suffocation, incineration, breaking upon the wheel, and a variety of more imaginative ordeals. This sort of thing expanded the population of potters fields, not of prisons. Punishment was public because it was generally believed that seeing bad people put to death fostered a socially useful shock and awe in the spectators and fostered their moral improvement. A famous instance in the British navy in 1757, the execution of Admiral Byng by firing squad, is wickedly remembered in Voltaire’s Candide, where the naive hero points out that "in this country, it is good to kill an admiral from time to time, in order to encourage the others."
Incarceration was a different matter, having to do with money. In the Middle Ages the purpose of taking prisoners was to collect the ransom somebody was willing to pay for them. You might call it military kidnapping. Noble prisoners lived pretty well, and the tradition of luxury imprisonment—more or less what Mr. Zarrab is now petitioning for—continued into the eighteenth century. For the most part eighteenth-century prisons were organized on the principle of Pay to Stay. The pauper in rags, chained to an iron ring in some vast stone cellar, is much beloved by Hollywood; but from the economic point such a scenario wasn’t a paying proposition. Prison employees were expected to live off the tips of their affluent charges. The Cardinal de Rohan, held in the Bastille under the most ignominious of circumstances, was nonetheless able to throw a sumptuous dinner party for seventy-five friends in his prison pad. The idea of Debtors’ Prison, which seems so strange to the modern sensibility, was actually a kind of logical extension of medieval ransom in the age of Adam Smith.
In England there was a delightful institution called the sponging-house. The sponging-house, which took its colorful name from the manner in which water can be squeezed out of a sponge, was a kind of private debtors’ prison. Few wastrels were really so broke that they couldn’t come up with some cash under extreme duress. A private creditor at the end of his patience, with the help of the bailiffs, could have you carted off to the sponging-house for squeezing. Sin gives birth to death. You had to pay for your own keep, at fancy hotel prices, while being squeezed. The sponging-house continued to operate well into the nineteenth century. In London several such enterprises were operated by Jews, a fact that contributed to the anti-Semitic money-grubbing literary stereotype in Dickens and others. There are several memorable descriptions of the sponging-house in our literature. My own favorite is Mr. Moss’s establishment in Cursitor Street, off Chancery Lane, in Vanity Fair. To it Rawdon Crawley is from time to time dragged. From it he escapes to his domestic hearth only to discover his wicked wife Becky in a highly compromising situation with the wicked Lord Steyne. I don't know what has become of Mr. Zarrab's petition, but in general plus ça change...