Judicial Reform (Part 2)

Judicial Reform (Part 1)
covering a brief philosophical history of justice

Judicial Reform (Part 3)
The conclusion to how the justice system should be reformed.

Now that some of the background of why we do justice the way we do has been laid down, it's time to move on to how we actually practice justice in the real world.

It is clear to see that justice, as it is practiced today, is first and last focused on punishment. While some small programs exist (such as anti-drug campaigns) to preempt violent or otherwise subversive or harmful behavior, a near total majority of time, focus, and funding is put towards figuring out to do once a person has already committed a crime. While civil courts tend to place their focus on adequate restitution, that is, forcing the guilty party to compensate the afflicted party for the damage that they have done, the criminal courts, at least in the United States, have a complete fixation on punishment and retribution. The point is not to restore the world to a pre-crime state, but to inflict damage on the offender to an equal amount that they damaged others by committing their crime.

This relies, 100% on coercion. Armed police officers arrest you, and powerful people put you into prisons where you are forcibly detained by more armed officers. It relies on power, and it relies on force, and, in rare circumstances, it relies on violence. More over, it is difficult to do (in part because people tend to resist punishment, compared to restitution or forgiveness), and it has become atrociously expensive. Nowadays, it costs $50,000 per person per year to keep people in prison. If I embezzle $10,000 from a government agency and am locked up for 10 years as a result, the state is burdened by $500,000, a fifty fold harm to the state than if I had just walked away with the money. Clearly there is something wrong with this system if the entire point is to restore balance.

But apart from the horrendous inefficiencies of our current justice system, we have to ask the more crucial question: "does coercion even work?" The only real strategy that a system that can only attempt justice after crimes have been committed is to see if the way in which they meted out justice prevented future crime. While the system may be able to bring the scales back into balance through coercive punishment, I think it would be difficult to find a person who disagrees with the idea that the justice system should also help keep things in balance. If coercion can not do this, it means that the only use of coercive justice is to balance the scales in the least popular, most expensive way possible. Such a system, naturally, should be done away with and replaced.

Allow me to reference John Burton from his essay "International Relations or World Society?" (International Studies Association, "The Study of World Society, the London Perspective", 1974):

There are those at the ground floor level who claim to be "political realists". They have a Calvinistic conception of behavior related very closely to traditional normative notions reflected in legal thinking. Their assumption appears to be that, generally speaking, persons and states conform to agreed norms of behavior because of coercion and threat, together with some sense of moral obligation. The questions they ask are why does the minority not conform and how can it be made to conform? ... The role of the state is to control [peoples'] behavior and is given a legitimate monopoly on violence.

However, there is a false assumption inherent in the ground floor notion of coercive authority... The assumption that policies of coercion deter. The average prison sentence in Britain was 28 percent longer in 1971 than it was in 1961, but there was no apparent positive effect. In education, in industrial relations and in communal relations, threat and coercion are found not to be effective deterrents. This is the empirical position. At all levels, the tendency is to respond to failure by applying more of the same medicine and not to acknowledge that the initial analysis was probably faulty. When "law and order" fails, the level of coercion is increased.

It is this form of punishment... that the court, authorities and society inflict. Behavior is not altered by it in the direction intended: on the contrary, the behavioral response is to damage the person or property of that authority as soon as opportunity offers.

Of course, John Burton was not the first person to notice this effect. As Confucius once said "a man will be good only while he is punished, and, once the punishment is over go back to his ways. A man of propriety, on the other hand, will shun evil ways always."

In fact, I believe it would be difficult to find someone confident that punishment is a serious deterrent, and the fact that 1 in 30 Americans is currently behind bars should testify to this (and the Department of Justice presumes that 1 in 15 people will have spent some time in prison as of this year). In fact, rather than thinking about this abstractly and empirically, we can also bring it down to the concrete level. Ask yourself, have you ever known that doing something had a punishment attached to it, but you did it anyways? This is so pervasive that it because the prime statue for burning people at the stake during the inquisition: auto de fe (or, as Mel Brooks summarizes: "Its what you oughtnt to do but you do anyway.")

So, if coercion is not, in fact, much of a deterrent, then why do we continue to use it, despite its enormous costs, both monetarily and socially? This brings us once again to the history of justice. Hundreds of years ago, the application of justice basically boiled down to two forms: exile, or capital punishment. Firstly, these two options were very inexpensive. Exile, of course, was free, while capital punishment required someone to spare a few moments to slap someone in the local pillory, or some other form of public shaming. While this type of coercion may lack utility, at least it doesn't absorb massive amount of resources and destroy lives while getting the same amount of nowhere.

The second main thrust is that it is actually possible to deter someone from doing something if you remove the person altogether. A brigand exiled to the other side of the ocean is physically unable to terrorize your populace. Likewise, if someone is put to death, it will be challenging, to say the least, to lapse into recidivism. Once again, exile is free, and a single rope can be used at more than one hanging. The important thing to consider, though, is that neither of these methods are designed to level the scales per se. While it definitely may have a balancing effect, the point is clearly focused on deterring further crime, rather than punishing someone and hoping that they won't do it again (which we know doesn't work).

While prisons are thought to have this same effect, they are not the reason we use them. Instead, the rise of the prison system as we know it today, comes on the back of the "penitentiary" movement. The point of the court sending you to prison wasn't so much so that the scales would be re-balanced, or that you would be taken away from society so you couldn't cause problems (although these were both intended side effects) but rather to place criminals in a place where they could do penance for their sins and come out as a reformed person who would not commit crime again. These old penitentiaries were built in the spitting image of old monasteries with rows of cells which contained an ascetic nothing but a bible, and a church in the middle. Criminals would pray until God healed their souls. Free from sin, they would be let out to crime no more.

As noble of an experiment as this was, it clearly failed. In the end, prisoners did not reform simply by being placed in a whitewashed room and told to pray it out. Unfortunately, the prison system lurched on as a zombie. The rows of cells would stay, as would the idea of keeping dangerous people away from society. However, rather than being a place that temporarily housed people while they waited capital punishment or while they prayed, being incarcerated became a PART of the punishment itself. Soon, it would become THE sole punishment for criminal offenses. Gone was a way of punishment that deterred crime (like executions), or reduced recidivism (monastic prayer), and what was left is a non-deterring coercive force of punishment that is as expensive as it is ineffective. It's interesting to note that prisons today are still called "correctional facilities" as if they actually correct anything.

Finally, there is a more insidious side of punishment. That is, that punishment invokes a deep-seated human desire for revenge against our punishers. Not only does punishment fail to deter in the first place, but it actually increases the afflicted's desire to be a violent person. This is easy to understand when the process of imprisonment rips families apart and causes people to be much less likely to get employed or be able to do other things to start a new life once they've been in prison.

The idea that cruelty, even in the name of balancing the scales of justice, creates more problems than it causes is pervasive in the course of human events. Heavy "strategic" bombing in World War 2 sought to break the morale of civilians by bombing them. In fact, strategic bombing increased the resolve of the afflicted population. Likewise, putting down rebellious behavior by force quickly gets re-branded as "massacres" from Waxhaw to Baghdad. While it is easy for our minds to drift to the few times when coercion worked, like the ending of the Boer War with concentration camps, or the end of World War 2 with nuclear weapons, it betrays the fact that coercion almost never works, and when it does, the coerced party must be utterly destroyed. Is that what we want to do to people who park the wrong way on the street or sell insurance with an outdated license?

The way that our modern societies apply "justice" in the real world is an abhorrent mess. Based on a failed experiment over a hundred years ago, we now choose to use the most expensive, most demeaning, least utile form of meting out justice and deterring crime. The only way such a system can be ultimately successful is if all people are born and die in a cell, or if the state is willing to use the equivalent of nuclear weapons on its own population. Clearly, the system must be thrown out immediately.

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