File this under “The Way Things Ought To Be Because Nathan Says So.”
I think one of the major reasons for the conflicting arguments on goals and ends of criminal justice reform is that there’s a promise implicit in the very name that simply can’t be fulfilled.
In other words: It isn’t really a “justice” system. It can’t be. What is justice if the guilty literally cannot replace or repay the victims of their accidents? The starkest example is a murderer who cannot literally repay what he’s taken from his victim and love ones, but it trickles down to just about every major felony. An arsonist cannot replace the homes and lives destroyed. A rapist cannot un-rape someone. Despite the platitude, someone who serves a sentence has not “paid their debt to society” by sitting for years in a can on society’s dime. And I think it’s the cognitive dissonance at the subconscious level between the label and the reality that leaves just about everyone on the entire political spectrum dissatisfied.
What the “justice” system CAN be reformed into is a criminal penalty system (the usual penalty categories being incarceration, confiscation and other forms of activity curtailment), governed by the following three purposes, in order of importance. Not all three of them apply in every case, but when they do apply, #1 is more important than #2 by orders of magnitude, and the same between #2 and #3.
1. Protect the public, especially the more vulnerable. This is the absolutely essential goal, without which the whole endeavor dissolves. The purpose of criminal penalties needs to be to keep whoever did it from doing it again. This is clearest with the indiscriminate, repeat perpetrator. The callous murderer cannot be allowed to murder again. The serial rapist cannot be allowed to rape again. The habitual smash-and-grab robber cannot be allowed to rob again. Penalties thus need to be formulated with the specific goal of ending the criminal behavior once and for all, including . (This is where capital punishment is most justified, if the choice is between decades of maintenance for a prisoner who must, for the safety of society, never be released.)
Also, by this standard, deportation (and denaturalization) can be proper penalties, as no government in the U.S. has a duty to protect the citizens of a foreign nation from one of their own.
This, by the way, will render moot a large facet of the law regarding insanity defenses and other philosophies of reduced competence or culpability. If a habitual schizophrenic who stabs a stranger to death on the subway is found to have diminished capacity and an inability to comprehend right and wrong, IT DOESN’T MATTER. The goal of protecting the public must be paramount. If an individual cannot be trusted to behave non-violently when free in public, that individual should not be allowed free in public. In that case, institutionalization takes the place of incarceration, but the primary goal must still be to protect the public from that individual, whether they’re cognitively responsible or not.
2. Discourage repeat behavior. The constitutional prohibition against cruel and unusual punishment has been stretched far beyond the bounds of a coherent concept. All criminal penalties, whether incarceration or confiscation or some other form, needs to be unpleasant enough that the individual never wants to have it imposed again. If recidivists are fine with going into and out of prison, then prison isn’t prison-y enough.
That doesn’t meant that a prison term shouldn’t encompass positive reform of the incarcerated. (I appreciate absolutely nothing about the Canadian criminal justice system except for its name: Correctional Service Canada. Would that there was any effort to live up to it.) I heartily support, career training, psychiatric therapy, drug treatment, whatever — it is rightly a part of the first principle if it reduces the danger that the individual poses to society after the prison term. If, however, a jail sentence is simply an arbitrary caesura in a criminal lifestyle, it serves no permanent good. The main thrust needs to be a prisoner who comes out the other end saying, “If doing again what I did gets me back in there, I’m NEVER doing that again.”
This, by the way, should obviate the rationale for long sentences. 1-2 years of unpleasantness can inculcate a desire never to be incarcerated again, without rendering them incapable of re-integrating into society. A 20-year prison term under the current philosophies of incarceration only guarantees that, upon release, the convict is a permanently liminal figure, not socialized to anything BUT the company of other unreformed criminals. There should be a huge desert between the short sentences meant to discourage recidivism and the life-long incarcerations of those who simply can not ever be reintroduced to society (or capital punishment).
3. Deter third parties. There are a lot of crimes for which the first two principles don’t really apply. For instance (to take a well-known case and posit that the acquitted accused was guilty), I doubt that O.J. Simpson would ever have been in a position to murder another ex-wife. However, penalizing criminal behavior even when the odds of that individual committing a similar crime again helps deter others in a similar position to commit that one-time crime. (Research has shown that criminal penalties are not a strong deterrence, and I accept that. That’s why I’ve listed it third, at a far lesser importance than the first two; it’s a consideration, but a much lesser one.)
If the criminal penalty system were revised around these clear, hierarchical goals instead of nebulous undefinable ideas like “justice,” it could actually produce a strong, measurable benefit.
What am I missing?
I’d say the thing you’re missing is punishment.
It’s not necessarily a noble goal or a logical goal, but there’s something in us that demands, “When one among you harms another, he must be punished.” A big part of what makes society works and keeps it from devolving into feuds and vendettas is the bargain that, if someone is wronged, the state will take vengeance on that individual’s behalf.
Even if it’s someone is highly unlikely to commit another crime, and punishing them wouldn’t stop any third parties from committing similar crimes, I doubt anyone personally involved would be satisfied with, “Oh, well. You get your one free murder. As long as you don’t do it again, you can go through life happily.” That would likely lead to a lot of crimes having a de-facto death penalty, as the victim or someone close to him decides that it’s time to make use of HIS free murder…
I don’t dispute that. However, deciding what “proper” punishment is for an infraction (or whether a punishment is even proper — insert the lyrics for “Only a Lad” here) is increasing hard in a pluralistic society; there isn’t a schedule of weregild that we can all agree upon.
I think as well that there ISN’T an instance (certainly not one I can conceive of) in which “someone is highly unlikely to commit another crime, and punishing them wouldn’t stop any third parties from committing similar crimes.” Those people who would commit a one-off crime for a specific circumstance that’s not likely to ever come up again (I’m now having flashbacks to ALL of the Columbo TV-movies) are the most likely to be deterred by the awareness of a severe penalty if they’re caught.
Let me be clear: I have as strong a visceral urge to feed vile monsters into a slow woodchipper feet-first as much as the next guy, and as I indicated, I have no problem with the death penalty as such. But if we concentrate on punishment as the PRIME motivation for criminal penalties, we’ll always get caught up in questions of ultimate culpability vs. societal influence, mental health, etc. Whereas if we were to privilege the principles above in making decisions about criminal penalties, then the issue of punishment would largely take care of itself, either by being fulfilled in a penalty prescribed by adherence to those principles, or by having the action requiring the punishment curtailed in the first place.
For instance: Decarlos Dejuan Brown Jr., the piece of human excrement who killed Iryna Zarutska at random, was walking free because he was released with a pinky promise by a judge who had relied entirely on whether “punishment” was warranted for previous infractions and whether someone with his mental problems was truly culpable. Whereas if she had used the criteria above in rendering her judgment, it’s very likely that Brown simply would not have been at liberty to to what he did. And if his current committed to a federal medical facility (due to being adjudged as incompetent to stand trial) were committed first and foremost not to the stated goal “restoring his competency” but of protecting of the innocent at large, then the odds of him every being able to commit further atrocities would be greatly reduced.
Of course, the problem of getting from where we are the the adoption of the principles above is gargantuan enough to render the thought experiment almost entirely hypothetical with the application of a flux capacitor. But even in cases where there’s no reasonable means to effect a societal change, we should still devote thought to formulating what a more perfect society would look like, so that we can recognize incremental changes in that direction.
Okay, that’s fair enough. But I don’t think we can leave punishment ENTIRELY out of the equation. Less important than protecting the public, but I think it still needs to be a recognized goal.
Can you think of a situation in which properly using the three criteria above would leave the need for punishment (the state taking vengeance) unfulfilled?