Philosophos: . . . OK, we are now going to transition a bit. Let’s examine how the government can protect the rights that are given to all men. We will begin with criminal law. What right does criminal law deal with?
Nomodiphas: Assuming your definition and understanding of justice, criminal law deals with one’s right to live unharmed primarily, but it also deals with one’s right to property.
Philosophos: So people have a right to live without being harmed or killed as well as a right to property; how does the government protect those rights?
Nomodiphas: Like you have just mentioned, it protects them first and foremost by punishing those who infringe on the rights of others. This punishment being, of course, in proportion to the right violated.
Philosophos: Should the government have other goals such as incapacitation, deterrence, or rehabilitation?
Nomodiphas: As far as incapacitation goes, punishment for violent crimes generally entails incapacitation. Putting people in prison is our main method of punishing and this incapacitates the offender. Those who commit the worst crimes are in the most need of incapacitation and generally receive longer sentences. I don’t think incapacitation needs to be a goal of the government because it is a natural outcome of just punishment.
The same could be said of deterrence. When people are justly punished for crimes they commit, there is a deterring effect on both them and others. Many people commit crimes because the reward is greater than the risk. Just punishment reverses this and makes the risk of punishment greater than the reward. By justly punishing criminals others will be deterred. The risk of making deterrence a focus is that one may be punished to a degree greater then he deserves. This happens when the government wants to set an example for some crime and to do that it comes down too hard on one individual (or even frames an innocent individual for deterrence does not require guilt). That is why deterrence in itself should not be a goal of the government.
As for rehabilitation . . . I personally think this is the greatest folly our government has embarked on in the criminal field. First off it misunderstands the nature of crime. When rehabilitation of the offender is the goal of government, crime is treated as a disease. It is diagnosed and then treated. The criminal is sentenced under some indeterminate sentencing scheme and released after he is ‘cured.’ This view of crime undermines man’s free will. Crime becomes not a freely chosen act that can be punished; but instead a disease that exists outside the will of man that must be treated.
Second this method of sentencing is unjust to the victim. The focus is on the perpetrator and the government seeks to make them whole and complete. The focus is flipped. The victim is the one who has had their rights taken and it is their rights that the government should focus on protecting and it is they that the government should strive to make whole. Future victims are put at risk as well. When the perpetrator is not justly punished he and others are neither adequately deterred nor incapacitated—this puts potential victims at risk of repeat criminal offenders.
In our government the focus is almost always on the rights of the criminal and how the state can best protect and serve the criminal. This is backwards and if the state continues to fail to perform its function and be just in this field the people will rise up and start taking justice into their own hands. There are too many murderers and rapists on the loose in this country. If the state fails to justly punish them, the people will lose faith in the system and stop turning criminals in to the state and instead rely on themselves to give the criminals their just desserts. Though community enforcement of justice could and has worked well, my fear is that it will be done without the sanction of the state and rebellion to the state, which would like produce a similarly unjust system.
Finally rehabilitation is unjust because it is the government giving mercy. No one has a right to rehabilitation. It is not a right given in the Bible. No one has a right to education, drug treatment, anger management, counseling, etc. Not that these are bad things and not helpful, it is simply that private individuals and not the state should provide them. Millions of law abiding citizens live without health insurance, higher education, and counseling—why should those who infringe on the rights of others be provided these luxuries for free at the cost of law abiding citizens?
Philosophos: I think you are completely right. As you spoke I pondered the example of King David and Bathsheba. This gives further Biblical backing for what you just said. As we know David had an affair with Bathsheba. To cover up the pregnancy he had her husband killed. David broke the law, but as king there was no man above him to punish him, so God punished him. David repented before punishment came. He was sorry for what he had done. In fact he was completely ‘rehabilitated!’ He was a man after God’s heart and would not repeat his crime. Because he was not a further threat there was no need to incapacitate him and because he had learned his lesson there was no need to deter him—yet God still punished him. Why did God punish David? Because it was just. Justice is equilibrium and requires punishment. David infringed on the right of another and in doing so forfeited his own rights. Justice required that he be held responsible for his action and have his rights limited to a fair degree. Justice requires punishment even when there is no threat of future harm, no need for deterrence, and the violator is sorry and is in fact rehabilitated.
Another example is found in the Law of Moses. If someone killed another by accident they were to flee to a city of refuge where they would be protected from anyone seeking revenge. But if one intentionally killed another they were to be cast out of the city of refuge and put to death. God commanded them ‘Show him no pity. You must purge from Israel the guilt of shedding innocent blood, so that it may go well with you.’
Our notion of justice has become so perverted that sometimes it is completely flipped on its head. I was reading a dissent from a judge in a recent case. Now this was no normal judge, in fact this was a Justice on the Wisconsin Supreme Court. In this case a man had raped an eight year old girl. Four years went by and the girl, because of the emotional trauma of the rape, was in counseling for her depression and emotional problems. The parents pressed the District Attorney to charge the man. Now in the ensuing four years the man had voluntarily checked himself into a sexual deviant program and got counseling. He had completely changed and was not a future threat. In spite of this the man was charged, found guilty, and sentenced. He showed true remorse at the trial, but despite his penance he was found guilty and sentenced. The case went all the way up to the Supreme Court where the sentence was upheld.
However, in his dissent, one Justice said it was unjust to charge this man simply because the victim desired it and further it was Draconian(!) to sentence the man on grounds of punishment alone. Because the man was sorry for his action and had rehabilitated and there was no need to deter him or incapacitate him this Justice thought it was a grave injustice for the court to punish him in any way. Is this really how our most respected and powerful judges think? That one can violate an eight year old girl and escape punishment so long as they are sorry and change? This girl experienced a gross violation of her rights, are those rights not worth protecting! Is this not the core function of government—to protect the rights of the weak from those who would wish to violate them? And does not the government best protect these rights by justly punishing those who violate them? Oh, and you know what his punishment for raping a defenseless eight year old girl was? Three years probation—real Draconian!
That Justice thought that during the sentencing stage we should not consider the act, but rather consider only the actor. What do you think? When we punish someone should we punish the act or the actor?
Nomodiphas: I believe we should punish the act—it is the only way to way to remain impartial and punish justly. It may be true that those who commit crimes that come from bad backgrounds (have bad families, live in bad neighbors, lack education, are unemployed, etc) are more likely to recommit crimes, are greater public safety threats, and are therefore in need of longer sentences, while those who commit crimes that come from good backgrounds (stable family, good neighborhood, educated, and employed) are less likely to recommit crimes, are less of a public safety threat and therefore do not need as long of sentences. This may be true, I am not totally convinced of this theory, but I’ll assume it is true for the sake of argument. Even if this is true one can look at it from the complete opposite perspective. The on who came from the bad background had less of a ‘chance’ to succeed and is therefore less blameworthy for his crime while the one with a good background had every opportunity to succeed, but despite this he chose crime, he is therefore more blameworthy for his crime and deserves a greater punishment. It can cut either way. That is why you can’t punish the actor. There is no way to be fair about it.
Philosophos: Excellent. When I gave that answer at school my professor asked me this: if you punish for the act, how can you know you will not over-punish? Let’s say someone commits a crime and needs two years in prison before he can safely be released and you give him four. He may come out a greater public safety threat because he was over-punished. Shouldn’t you punish the minimum a person needs?
Nomodiphas: Well first off that question assumes that we can adequately judge and predict when a person will commit a crime in the future. That to me seems impossible. Science cannot tell us with any confidence what a person will choose in the future. So to ask how much time in prison a person will need to not be a public safety threat seems to me to be an impossible question. Second it assumes an inappropriate role for government. It assumes that the government is to create perfect public safety. How on earth can any government create public safety? Attempting to do so would require the government to remove all our liberty. Crime is a freely willed act; the only way to eradicate crime would be to eradicate choice. There are many who want to do this. As you mentioned earlier these liberals believe man is a blank slate and through correct laws and education all men can be made perfect.
However, there are limits to government. Government cannot create perfect public safety—for the government cannot foresee the choices we will make and prevent us from making them. The only way the government could stop all crime would be to all end free choice. But free will, despite being the source of all evil, is our greatest gift and the source of all good. It was a gift given to us by God and government is to protect this gift and not abolish it. In order to respect our rights and liberty, the government must content itself to allow some evil. For example, as we discussed before, verbal abuse to children is very damaging. It is an evil, but the government cannot prevent it. The only way to prevent parents from yelling at or being too harsh with their children would be to remove all children from their parents. This is not a viable option and would create more harm than good. The government cannot rid the world of evil, for in doing so it would be required to rid the world of man’s liberty and free will. The government may not take what God has given us. God believed that the existence of evil was a fair price to pay for freedom; who are we to say we know better? So the government should not attempt to create perfect public safety, but instead perform its function and protect rights through just punishment. This will have a deterring affect and bring a measure of safety.
As I was saying we cannot justly punish if we focus on the individual for the facts cut both ways. The only way to be impartial is to punish the act, not the actor. And besides, this is how the Bible operates. In the Law of Moses people were punished based on what they did alone, no consideration was given to their background, wealth, nationality, etc. In fact this was the essence of the law, equal treatment of all men before it—no preference was given for wealth or privilege or lack there of. That is justice and when we focus on punishing the actor and not the act we once again turn justice on its head.
Philosophos: Very insightful, I think you have an excellent understanding of Godly principles in the field of criminal law. Shall we move on?
Nomodiphas: I have one quick question
Philosophos: Sure, go ahead.
Nomodiphas: What do you think about the widespread use of the plea bargain?
Philosophos: How often is the plea bargain used?
Nomodiphas: 95% of the time.
Philosophos: And what is its main use?
Nomodiphas: Efficiency is the primary purpose and information is a close second.
Philosophos: So I am assuming your main concern is that prosecutors let criminals enter a plea simply to lighten their load or that some people receive less punishment than what they deserve for crimes they committed simply because they have information on another crime.
Nomodiphas: Exactly. I know that this is not the reason for all pleas—I know many times people accept their guilt and just want to move on or the evidence against them is so strong they don’t want to waste their time with a trial.
Philosophos: That is no doubt true, but I think your concerns are valid. It is unjust to punish someone less simply to save time. Justice is not always efficient. Many times justice can be efficient, but when the two are in conflict, justice must prevail. Our court system is bogged down, but I imagine there are better ways to fix the problem. It seems it would be better to shorten or streamline the trial process instead of trying to avoid it all together by relying on pleas. Further, giving information to absolve oneself from a crime seems to me to be unjust. There are other sources for the information and if people worked a little harder I am sure they could find ways to convict both higher and lower perpetrators.
The bigger problem for me is the indeterminate sentencing schemes. In an indeterminate sentencing scheme (which I take to be unjust because the focus is to rehabilitate the actor, not punish the act), the plea bargain isn’t that significant because the important sentencing decisions (duration) are made by unelected, unaccountable parole boards. In a truth in sentencing scheme (one that focuses on the act, not the actor and dispenses just punishment, not rehabilitation) the plea is much more significant. The prosecutor becomes the de facto sentencer. The good thing with this is that the plea is public and the prosecutor is a public office, so there is at least accountability in the plea process.
Nomodiphas: Makes sense, we can move on.
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