Judicial Reform (Part 3)

Judicial Reform (Part 2)
Covering the application of justice in the modern world

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

So, what are we left with?

We are left with a judicial system in which the state takes over as prosecutor when a "crime" has no victim, and the way in which the scales are balanced is by the method which has the least utility, while at the same time is the most expensive, destructive, and ultimately detrimental.

So what can we do?

The first thing, of course, we need to do is to completely eliminate any form of attempting justice that relies on coercion. No fines, no fees, no prison, no capital punishment. Period.

Of course, this does cause a few loose ends to show up. The first is, "how do we do justice?", that is, how do we balance the scales? In the end, a victim who is unable to find justice can be worse than a perpetrator who has chafed under the coercive punishment of imprisonment. The best answer is restitution, as it is the most satisfying way of vindicating the victim, and thus the least amount of action is actually required for the victim to feel that justice has been done.

If you burn down my house, for example, and you go to jail, the fact is that I still don't have a house (and to add injury to insult, I now need to pay for your jail time). This is clearly an unsatisfying way to vindicate my pain, and, as such, more of it is required to go the same distance. This is, of course, disastrous when more of the most expensive means is the only option.

Furthermore, being the victim of crime and injustice is a deeply personal thing. What is troubling to most people who have had their house broken into is less the stuff that's been taken, and more the deep feeling of invasion of privacy and fear for their families. This personal aspect is left unsatiated with the application of justice in our modern world. As such, not only is punishment bad for the criminal, and only gets worse the more you apply, punishment is also unsatisfying to the victim, which means that more is required in order for justice to be served.

This is why restitution is by far the better means of handling justice than retribution and revenge. After all, if someone broke into your house and stole something, which would be more satisfying, the perpetrator returning the stolen property, sincerely apologizing, and buying you a new and improved front door lock, or to have the perpetrator worked through a sterile system and have them sit in a prison, get free room and board, and you have to pay for it all? You can take pleasure in the actual mental anguish of imprisonment, but it is invariably far less satisfying compared to a solution that is personal, applicable and appropriate, and, most importantly actually fixes the problems caused by the crime.

The other major loose end is how to deter crime. Obviously, we would all like to have a judicial system that helps prevent crime in the first place, rather than just trying to clean up the mess. Again, I turn to John Burton:

The axiomatic element in all human behavior is relationships. No progress can be made in the study of any level of behavior unless there is description and explanation of relationships, how they evolve, how they are learned, what patterns emerge, and why there is observance of and deviance from them.

At the ground floor level, conflict is an aberration, a breakdown in social or authority relationships. Having thus deviated, the subject is required to experience a form of punishment or negative satisfaction. Punishment, even physical punishment, by a parent is usually in the context of a relationship. It is not the physical hurt that has any effect. What is at stake is the relationship, and to preserve this the child is prepared to conform if necessary. But punishment by a parent, teacher, or authority with whom there is no valued relationship rests entirely on the physical pain or the deprivation inflicted, with which the human organism has a physical and mental capacity to cope. It is this form of punishment, unassociated with valued relationships, that the court, authorities and society inflict. Behavior is not altered by it in the direction intended.

The point being made is that coercion is temporary, abstract, and resistible, actual deterrence comes from things that are permanent and personal. For example, if the relationship with someone you love is damaged by something you do, it will have a deeply personal effect, that is permanent until you can make up for it (that is, until justice is served). In this way, the perpetrator is given a positive goal of how to make amends for their crime, and plenty of reason to do so (what they have with the other person is lost until they make amends). Rather than the idea that a crime will create a temporary, abstract problem that can be resisted, such actions would create a sense of personal loss that will endure until it is eventually undone. Clearly the latter is not only more deterring, but provides much more impetus for the criminal to actively correct their problem in the way that will be the most satisfying to the victim. Compared to the current system that provides no impetus for restoring the world to its pre-crime state, and is less satisfying to the victim, and is expensive and destructive, clearly this method is the one of choice.

Of course, this requires there to be something out there that any given person would be loathed to allow to be lost or negatively altered. Again John Burton:

Modern industrial society tends to destroy and not to build relationships. Technological developments require shifts in occupation and changes in living environments. There is no identity, or relationship on a personal basis, with a monopolized industry, a large company, or the society as a whole represented by the tax gatherer. In the absence of internalized norms you do not pay your fare or for your shopping unless clearly required to do so. This is a situation that will get worse as industrial society gets larger and even more anonymous.

If relationships are the backbone of deterrence, and the lack of them is the result of modernity, what are we to do? I mean, how much different is your life from prison actually, other than that you have to work and your family is already there? Clearly, without this excommunication (exile) and public humiliation (capital punishment) have little utility.

Of course, it would be easy to just say "death to modernity" and try to recreate a feudal system (which might not be so bad now that we know how to combat the plague), but such a drastic social overhaul would be a bit of a challenge. That being said, in a targeted way, this would actually be possible. After all, if people don't hold people they care about at gunpoint for their money, or steal their car, or whatever, wouldn't it make sense to do things to make people care about each other? After all, would it be better to spend $10,000 per year per poor, urban youth to get them to know and care about their neighbors, or would it be better to spend $10,000 per year to destroy that same youth's future while leaving the victim unvindicated after a crime has already been committed?

The answer is obvious. If you spend even half that amount, you're still spending $100 per person per week just for them to get to know people in their community. You could just GIVE them the money for helping the elderly, and you'd be relatively sure that you're clearing out a whole class of people that the person won't commit a crime against. Plus, the more involved a person gets in a community, the easier it is for them to get involved in their community. The more involvement, the more personal risk to the person who might commit a crime (and, arguably, the less likely they are to commit a crime in the first place).

This is not an idle pipe-dream, while spending most of our focus on prisons. Why should we abandon the better, cheaper system for the vastly more expensive system that causes more problems than it attempts to solve?

On a final note, I believe that we need to systematically end any court case that begins with "the people of..." Crimes against the state, unless they are actual, honest to goodness crimes against the state itself (like embezzlement from a state fund, or defacing state property, etc.), should be completely thrown out. There MUST be a victim in the courthouse (or perhaps their family in the case of a murder) who has actually been victimized by the defendant. If there isn't then such a case is CAUSING injustice to the "defendant", rather than meting out "justice" in balance for a "crime" that has no actual victims.

If the state gets on the ball and throws out victimless crimes and it throws out the methods that require a lot of pain and destruction just so that the victim remains unsatisfied, we can have a working legal system which finally stops creating more suffering than it attempts to alleviate.