Justice
by Tom Temple
15 February 2005
The word of the day. Since we have some law types in the readership maybe someone could help me out with it. I have no idea what it means.
When someone is being abnoxious on Xbox live and I kill them in a particularly humiliating fashion, it makes me feel good. Better still, if the other team is being really unsportsman-like and my team wins anyway. I like that too.
I’ve heard it suggested that this gratification comes from my own cowardice to act similarly. Maybe that’s it, but I don’t think so.
I think it is vengeful spite. Somebody get you angry and you enjoy it harm to comes to them. Which brings me to my point. I don’t think “justice” belongs in the “Criminal Justice System”... at least not in the title. When the state is deciding what to do with someone who has broken a rule, I think there are be more pragmatic concerns to be addressed.
What are the goals we want served? We want 1) to deter other people from doing the same thing. And we want 2) the perp’ to have a maximum (positive) impact on society.
It seems to me that public canings are really the way to go with that first one. They seem to put a lot more advertising effort into how stiff the penaltys are nominally rather than publicizing how harshly they are applied to any particular person.
That part 2) has a lot of aspects. Some people might have their best impact if they just made license plates until they died. Or maybe some we should just kill them right off the bat if they would be lousy license plate makers. Then there is the posibility that someone who would have a negative impact right now is going to change his ways after a while and we should just lock him up until he’s better.
Lastly, we occasionally have someone who is just boarderline positive enough that we probably don’t want to lock him up. But by punishing him we can scare him into being a better person, i.e. with more respect for authority. Wouldn’t it behoove the state to invest the court costs to prevent the potential life of crime that could result if they punish him to leniently?
I mean it totally makes sense. And empirically, every time they make laws stricter, not only does it decrease the the affected crime, it decreases all crime.
So, with Jesus at my side, I am happy to take whatever punishment the state deems is in society’s interest.
—Side Story—
There was this guy who got drunk and drove his car and crashed and a cute little girl got killed. Well they took the guy out of jail from time to time to have him break down crying in front of 8th graders. As one of those 8th graders, I thought it was an effective campaign, (I had been drinking and driving a lot before that you see). But I didn’t really think that the whole jail part was really necessary. I mean, he killed a cute little girl and was crying about that. Let’s suppose that he was doing something really beneficial beforehand. I would have personally preferred that he was still doing that in the time between 8th grader terrification sessions.
Feb 15, 06:15 PM
You sound like you just read “Starship Troopers.”
I think you missed a major, theoretical, purpose the CJS should serve, rehabilitation. Many criminals are driven to crime out of desperation, or because they simply don’t know anything else they can do. We would really prefer that people not be criminals when they get out of jail. There is plenty we can do to help people in this regard. Pointing them to work in ways that develop useful job skills for the outside seems like an obvious way. Right now jails provide enormous negative value in this regard. They don’t teach anything nearly as well as they teach crime.
I think we can do a lot to make our punishments better deterrents. Corporal punishment seems to be great in this regard. Fast, cheap, and an incredibly powerful deterrent.
I was recently thinking about this with respect to parole boards. Last week This American Life did a story on a wrongly incarcerated man who won his freedom after 20 years behind bars. One thing they touched on was his difficulty with the parole board. The board explained to him that they wouldn’t even consider releasing him until he took responsibility for his crime, and he refused to. I understand the policy of not questioning the guilt of the inmate, but I’m not sure how society is served by his confession at this point. Is there any evidence that inmates who no longer profess their innocence have a lower rate of recidivism?
It seems to me that issues of sentencing should best be decided by the jury and/or judge who hears the case. Who else would be better informed, or more capable of making well reasoned decisions in this area? The reasoning of the parole board should be limited to the inmates time in jail.
Feb 15, 06:49 PM
You’re right! I missed a great oportunity for another peice of veiled sarcasm. Rehabilitation certainly is one of the prime functions of our prisons.
A lot of judge and jury hands are tied by legislatures who are under (or create) a positive pressure to decrease the capacity for leniency and to increase the “toughness” of laws. Can you think of a restoring force?
Apart from not having the sense to lie to the parole board, that guy dealt with the whole thing pretty well though.
Feb 16, 06:44 AM
1. Believing yourself to be innocent—or at least expressing your innocense—is a very severe aggravating circumstance to a crime in America.
a) Going to trial, rather than pleading guilty, will almost always enhance your sentence, should you be found guilty in the end. The federal sentencing guidelines actually added “aggravating” points for pleading not guilty. (It could have gone the other way, of course. This guy says he’s innocent, even though the jury disagreed. Give the man a “mitigating” point or two, just in case the jury was wrong, which, y’know, happens from time to time.)
b) On top of failure to plead guilty and wasting the court’s time with a trail (never mind that whole 6th Amdt. thing), refusing to express remorse sure isn’t gonna help with sentencing.
c) Like you said, until you admit to the crime you’re never getting out on parole. You haven’t ‘come to terms’ with what you’ve done.
Pretty disgusting stuff. It’s almost like some totalitarian states, where believing yourself to be not guilty is a separate crime altogether.
Feb 16, 11:02 AM
Mitch, I was hoping you would come out and extole the virtue of justice to me and my savage friends. Or maybe at least defend the efficacy of the system. I mean… I am attacking the profession to which you aspire. I was trying to start an argument.
Feb 16, 01:23 PM
1) I wish I could help you with an argument, but I’m pretty sure I can’t define justice either. Plato gave it a shot, but I’m not very satisfied with his “well ordered society” outcome.
Clarence Darrow, a famous participant in the criminal justice system, said that justice is unknowable. By that I think he meant that every person has a different conception of justice; it’s entirely subjective.
If Plato can’t answer the question in 12 chapters of interlocution, and Darrow can’t answer in a lifetime of ruling the justice system, I’d be pretty presumptuous to jump in say, “No way, here’s what justice means…”
I get the feeling most people just have a sense that they know justice—or, more often, injustice—when they see it. If you ask most people, I bet they’d answer, “Justice is fairness.” That’s not very helpful.
2) Like you, I’m also not convinced justice is inherently good. Any Law and Econ adherent will ask you to imagine a situation in which an injustice is committed, but it makes makes everyone happier, including the ‘victim’ of the injustice. What’s wrong with that scenario? Can we call that a positive injustice, or is that a contradictin in terms?
Take an example.
In last week’s Simpson’s episode, Milhouse’s father was arrested for a crime he didn’t do. He was happy to be in the slammer, the police chief got a promotion for solving the crime, and Homer sold the story for money. No one was worse off. Lisa found out Milhouse’s dad was innocent, and she was all like, “But this is an injustice,” and everyone else was like, “Who cares? Everyone is better off. Shut your trap.”
Without defining justice, I think we’d all agree that a wrongful arrest or conviction is an injustice. But if that particular injustice leaves everyone happy, why strive for justice independent of its consequences?
I certainly believe that justice is good for maximizing utility in the long run. But maybe, like you suggest, the criminal “justice” system should be more about deterrence, less about some undefinably vague abstraction. In that case—and this is Posner’s view of the criminal justice system—throw out talk of justice altogether.
(I personally think there’s an important retributive element to the system, which neither you nor Jon mention. That may bear a closer resemblance to justice.)
Feb 16, 06:26 PM
I’m not surprised you were disappointed with The Republic. It’s just mental masturbation.
Retribution: I’ll bite. Is retribution like when we make theives pay the money back? I’m all for it. Or if I break the ceiling at a party, I should be the one to fix it, right? I think next time Micro$oft gets hit they should have to give up some code.
I don’t think that generalizes well. You must be talking about something else. What are you talking about?
Feb 16, 07:26 PM
Retribution, Tom, is when some hits you, and you hit them back.
I don’t think the retributive element is important. Does society put a value on retribution?
Retribution is not orthogonal to the other goals we’ve brought up. Any system of deterrence (that works) will have an aspect of retribution. Many systems of milking utility out of convicts will have an aspect of retribution. Rehabilitation probably is orthogonal to retribution (on second though, ‘Alcohol Aversion Programs” seem like they might be pure retribution.)
So, I’m not sure what the part of retribution is, that isn’t deterrence and utility, and that Mitch thinks is important. It seems to me that type of retribution would have to be a “surprise punishment” (to avoid deterrence value) or something.
Even if society does value retribution, even if people are willing to pay money just to see someone punished, is that something we want to do?
“Do policy makers have a duty to provide goods that make people truly better off, even if they are neither desired ex ante nor appreciated ex post? The easy answer is no…”
Do policy makers have a duty to provide goods that do not make the people better off, even if they are desired ex ante, and appreciated ex post?
Feb 16, 07:38 PM
I think you’re confusing retribution with restitution.
Paying back what you took or fixing what you broke is restitution. Restitution is compensatory. Retribution is punitive.
You said the criminal justice system should be deterrence-oriented. Jon added rehabilitation. I’m surprised neither of you mentioned retribution. Someone hits you; your first instinct (if not flight) is to hit him back. Do you want to hit him back to deter him from hitting you in the future? Do you want to hit him back to make him a better person? No, you want to hit him back to make him suffer for paining you. It’s a crude, primitive rationale for punishment, but it’s the most readily understood and widely accepted.
So take your example of the drunk driver who ran over the little girl. Let’s say we know the guilt is enough to deter him (specific deterrence), and just seeing the dead girl on the news is enough to deter others from doing the same (general deterrence). And let’s say the guilt also rehabilitates the guy. He never drinks and drives again. Hell, he never even drinks again.
Is everyone happy? No way! This guy killed a little girl! The girl’s still dead, and her family and friends are probably in grief and full of anger. Someone’s responsible. Shouldn’t he pay?
We don’t allow vigilanteism; the girl’s family can’t kill the driver. What our government has done, some would say, is to make a deal with its citizens (a covenant in the social contract, you could say, if you’re into that social contract crap). In return for giving up our right to take vengence on those who have injured us, and in return for granting the state a monopoly on force, the state promises to take vengeance for us. Only it does so more systematically and deliberately, so that vengeance probably isn’t the right word anymore.
So: retribution.
Feb 16, 11:45 PM
I stand by my previous post.
If retribution exists solely because people want it. And if they want it despite that it offers them no real utility, then it has no place in any system of justice.
Feb 17, 04:24 AM
So if some guy kills my daughter and I kill him right away, that’s vengance and second-degree murder. If the state deliberates a few months before killing him, it’s retribution.
Retribution and _[blank]_.
Feb 17, 07:36 AM
Jon, why doesn’t retribution offer real utility? It makes people feel better knowing a perp’s been punished.
Feb 17, 12:24 PM
Let’s plot utility against severity and take the derivative. Do you think that an additional day in jail would ever be worth the ammount of “feel better” the victims might gain from it? Like if some guy is supposed to be in jail for 10yrs and I cut it back to nine, he gets one year less in jail. Maybe some people would be pretty pissed, but I don’t think enough to justify another year in jail.
I’ll admit that utility is there but I think it is seldom relevant.
Maybe sometimes though. What got me started on this was condemning the 74yr old rapist priest to death by incarceration. About a million people would have been pretty pissed for a couple days if they’d taken it easier on him. That alone is justification for a harsh sentance, right?
Feb 17, 08:11 PM
Father Shandley is your example!
Look, I agree with you that sentences are generally outrageously harsh. People don’t understand how LONG a multi-year sentence is. Five years doesn’t sound like a lot, but when you think about it for a minute, it is.
But some people are just monsters and should be locked up for life or executed. Shandley’s one of those people.
I know we don’t execute people for other than murden and treason. But if ever someone should be executed for sexual abuse, it’s Shandley.
I saw Eric MacLeish speak today. One of the greatest litigators in America, he was singularly responsible for bringing the Boston priest scandal to light and taking down Cardinal Law. The man’s a force of nature.
You should read an account of what Shandley did and how the Church covered it up. You would be very satisfied with his sentence.
Intersting side-story: as he got up to speak to our class, MacLeish introduced himself like this.
“Hi, I’m Eric MacLeish. I’m a student at Plymouth State Teacher’s School. I just finished my first class. I hope I got As.”
After three years of taking depositions, MacLeish had to leave the profession. He was diagnosed with post traumatic stress disorder.
Feb 17, 10:12 PM
It was just a snippet I heard on the radio that got me thinking. From the little I heard, it sounded like he was innocent. Now I see that there was more evidence than repressed 1983 memories. Church cover up? Faaantastic. Nothing makes my day like a church scandal. That’ll be a separate post.
I’m glad we agree about sentences. Five years in jail is a VERY long time. They’re threatening me with a month and it is more than enough to get my attention. When it is resolved, I promise a post about it but it’ll probably be another month. In the meantime, I’ll bug Jon to write about the day he went to court.