Tolstoy does not really share the revolutionary vocation either—at least not the vocation of the Social Revolutionaries, Anarchists, and Communists of his own age. His vision restates the problem. The way a society treats those who are held entirely in its power—prisoners—tells us a great deal about the character of that society. Is the fundamental humanity of these prisoners recognized? Are their essential human needs attended to? Is serious attention paid to their guilt or innocence? Or are they simply made into scapegoats for the social and political problems of the day?
Tolstoy renders a compelling portrait of the criminal-justice system of his day. A woman clearly innocent of the crime of which she is accused (being an accomplice in a theft and homicide) is run through the criminal justice system. The prosecutor managing the case quickly realizes her innocence. Still, his major concern is securing convictions and bettering his record. There is, after all, a death, and someone must atone for it. The prosecutor knows exactly how to wield the system—how to empanel a jury that will convict, how to maneuver the case before a judge who will smooth his path, how to forestall defense counsel from raising legitimate doubt about the accused’s guilt in the minds of jurors. The judge, likewise, soon reveals that he also realizes that the accused is innocent. But his concern is primarily for his own career and the prospect of judicial advancement. The public needs a conviction for the crime, and this woman may be innocent, but it’s unlikely that the public would understand the subtle arrangement of facts that lead to that conclusion. It’s much easier for the judge simply to allow the case to glide through to a conviction. A jury will, after all, decide the question of guilt or innocence. Tolstoy’s presentation of the appeals process gives us a similar tug of war for the conscience of judges—they all recognize that the accused is innocent, but a majority of them nevertheless find their way free to upholding the conviction and sentence, driven, in the case of the decisive vote, by astonishingly petty considerations of social caste. And though Tolstoy describes his own times–the final decades of Tsarist rule over the Russian Empire–it strikes me that his prosecutors, his judges, his jurors, his prison guards, could just as easily populate a federal court in America today. They present much the same foibles, weaknesses, vanities and political machinations.