2016/05/03

Crime, Justice, and Punishment

My opinion of law has gone up and down over many years. Initially, it was immutable and all-powerful. After that, contempt. And now, hopefully, a little more nuanced than that. I had a bunch of thoughts which tied in with some uni study I was doing. Here they are!

This will mostly focus on appropriate sentencing, both when the law is written and when it is applied.

As far as I can tell, when sentencing there are five considerations: rehabilitation, public safety, deterrence, social movement, and justice.

The first four are relatively simple (at least to describe).

Rehabilitation is making sure the offender doesn't repeat the crime. More than that, it is also making sure that at the end of sentencing, the offender becomes an upstanding productive member of society. A severe failure of this is the American War on Drugs, which turns offenders into worse offenders after a while. Obviously, you'd hope that the opposite would happen. For a while, I thought that rehab was really the only purpose of prison systems, but I'm going into a bunch more down below. It is a common progressive thought though, which I'd like to address here.

Public Safety is related to the first, in that while rehab is occurring the offender should be put in a position where it is unlikely they can commit the crime again. This can also affect groups outside of the prison system, as a group the offender is part of cannot draw on him for support. Modern-ish prisons tend to fail at this, mostly by placing prisoners in close proximity to each other.

Deterrence is, perhaps, the most controversial, at least currently. The sentence you apply to this offender may affect similar potential offenders. It is hoped that they wouldn't become an offender. How much this works really depends on the crime, how consistently the punishment is applied, how enforceable the law is and so on. When it comes to crimes of passion, having a harsher punishment has little to no effect. But it is a consideration when passing down a sentence.

Social Movement is the last (before justice, which we'll get to), and is less popular than it used to be. In the past, politicians would enact wide reaching laws that affected society to promote a worldview that the politicians wanted. After disastrous applications of this (the Temperance Movement and Abolition, the Soviet State, various eugenics movements etc.), this is certainly less overt than previously. Indeed, there is a perception that politicians should simply be public managers, rather than pushing towards some better state/nation. But it does still happen, just not in the big showy way it used to.

And lastly, Justice.

Oh ho.

Towards the start of Batman Begins, Rachel Dawes tells Patrick Bateman (regarding revenge and justice)
"No, they're never the same, Bruce. Justice is about harmony. Revenge is about you making yourself feel better. Which is why we have an impartial system."
However, Rachel should know better, as a trained legal-y person. Justice is the set of broad cultural perceptions about how people should be treated based on their behaviour. While this informs law, it doesn't necessarily dictate it, and is, in fact, a separate concept.

For instance, a father (say) who has worked his 9-5 for forty years and has a decent amount of his retirement funds in stock options losing most of his retirement due to that feels unjust, even if it's not against any law. It seems just that good people have good lives and bad people have bad lives.

But culture is different from state to state, so should laws be different? I hear someone ask. And yes, this does sound like moral relativism. Which is fine.
Yes. The laws should be different depending on the culture. But not even that. When written, the law should be aware of the culture they are written for, both in terms of what it is addressing and how sentencing should work.
For instance, we all have the notion that a greater crime should have a greater punishment.
Or, more relevant, that punishment should happen at all. Imagine a murderer. Now imagine we had a rehab program that would guarantee the good behaviour of that murderer in a week. The murderer goes in, and out comes totally functional and non-violent florist Joe Murderer. While we can rationalise that this is better than letting the murderer go free, or even perhaps leaving him in prison for 20 years, it severely damages the faith that anyone who knows the murderee has in the 'system'. Imagine culture hadn't changed accordingly yet.

Legal systems work best when as many people as possible have a healthy amount of respect and faith in the system. So, while we can't say that it's necessarily cheaper for the state or better for the murderer that he spends some time in prison (where our culture says he should reside for a while), for our legal system and the society that it supports he should go.

And this, I think, seems rather unprogressive to some. Unnecessarily cruel, perhaps. But at the same time, we can all see when citizens don't have any respect for the law. Even more chaotically is when the law enforcement has no respect for the law.

You can see when courts hand down unjust punishments one way or another. The Afluenza case was one that hit a cultural nerve, that the rich can get away with manslaughter simply due to their wealth, and the media outcry was insane. In that particular instance, I'd say that whoever determined guilt and handed down the sentence failed to take justice into account.

Curiously, I found that the American prison and legal system fails on a lot of counts, which probably explains some of their high crime rates (also, poverty explains some). It is not corrective, despite its name. The people don't have respect for the system. Any attempts at social movement are all over the place. And the prisons famously allow prisoners to be cruel to one another. Seems like a shame.

Anyway, those were some new thoughts I had on that topic (new to me, anyway). I'm not legal-y person.

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