What does "real justice" look like?
I've been thinking a lot lately about prison reform, about the failures of our common law system, and trying to define for myself what "justice" really means. Like most Big Important Words, it's used to mean a lot of things in our culture: getting what you're entitled to, getting what you deserve, getting your basic rights, equal treatment, holding someone accountable, being punished, etc.
To narrow this topic a little bit, I'm going to stick to talking about criminal justice and specifically incarceration and capital punishment as instruments of "justice," since these punitive sentences are the primary way our system deals with most crimes from drug offenses to murder. However, I think that there are serious problems with our system of civil justice and some of them echo the problems in the criminal justice system.
Generally, criminal penalties are assigned several different purposes: deterrence, retribution and the prevention of "self-help" or vigilante justice, public safety (i.e. "getting criminals off the streets"), and rehabilitation. It's my position that our system fails pretty consistently to serve these functions.
Deterrence is the traditional justification for harsh penalties. Yet, rampant crime--including extremely high levels of violent crime--continues in our society, indicating that our system of penalties doesn't provide a good enough deterrent. Also, whether a punishment acts as a deterrent will differ for different types of crimes and for different kinds of criminals. Our country currently punishes crimes involving drug sales heavily, but many people in the drug trade are involved because they can make far more money with illegal activity than with legitimate employment. The rewards outweigh the risk. Hence, our policy on illegal drugs continues to fail.
I think that, for many people, retribution is still the common meaning of justice. When someone talks about "seeing justice done," they mean retribution. It's a deep, primal human reaction rooted in anger and aggression. When someone is hurt, they want to see the perpetrator hurt in return. An eye for an eye, a tooth for a tooth. In fact, we really want to do the hurting ourselves. Retributive justice is a way to institutionalize and regulate this instinct in order to, as many legal writers have put it, "prevent self-help." Draconian punishments do provide retribution, but retributive justice cannot return a murdered loved one to life or erase physical and psychological damage. There are also many, many cases of victims who receive little or no retributive satisfaction, particularly victims of rape, sexual abuse, and domestic assault, crimes which (without special circumstances such as extreme violence) are punishable by short prison spans despite the incalculable damage wrought by the perpetrators.
The act of removing a dangerous person from society is another justification for long prison sentences and capital punishment. Again, this works for some crimes and criminals and not for others. We know that some criminals are sociopathic or compulsive and will almost certainly re-offend; there's a clear value in removing such people from society. However, taking one drug dealer, car thief, or gang member off the streets only creates a gap which will be filled by someone else. As with deterrence, protective justice as it stands today generally does not work as intended, or work at all. For instance, short terms and parole for repeat sex offenders often leads to (surprise, surprise) repeat offenses.
As for rehabilitation, our justice system pays it a lot of lip service, but spends very little resources on it. The quality and availability of vocational, educational, and treatment programs within our prisons is laughable. In reality, our system does far more to entrench criminal tendencies in its subjects. The prison environment reinforces violent and aggressive tendencies and isolates prisoners from prosocial relationships, replacing any outside support network with a network of presumably antisocial individuals "inside." Furthermore, once released, it is extremely difficult for convicts to get legitimate employment, increasing the likelihood that they'll return to crime to support themselves, perhaps with the assistance of contacts they made in prison.
Since our current system does not actually perform any of these functions of justice effectively, what is its actual purpose? There is one thing the system does do extremely well, and that is enforce the status quo, perpetuating existing hierarchies of power, privilege, class, and opportunity. As our justice system stands now, justice is bought and sold. People without financial resources are almost certain to end up with a conviction and a more severe sentence than those who can pay for legal representation. Public defenders are so overworked and underfunded that they are rarely capable of effective representation. The result is that poor people, a disproportionate number of whom are people of color, are funneled very efficiently into our prisons. Even if the terms for their crimes are short, the conviction on their record ensures that they'll have great difficulty gaining employment once released, providing good reason to return to criminal activity to make ends meet. In fact, the system does not deter criminality, but nurtures it, as efficiently as if it were designed to do so.
A second thing our system does effectively is make money. The criminal justice system is an extremely lucrative business. In the state of California, the Department of Corrections and Rehabilitation is a power unto itself and its union lobbyists pour impressive resources into influencing state prison policy. In other words, our prisons are run and staffed by people who are legitimately profiting from the high levels of crime in our society. Rather than policies and institutions which prevent crimes and protect the vulnerable, we have instead policies and institutions that make people into criminals, harden them, and introduce them to other criminals. It's also no coincidence that our prisons leach money from our education system and social programs. Promoting public ignorance and desperation serves the interests of the "corrections" business well.
My conclusion is that, in fine Orwellian fashion, the only thing our system of criminal "justice" does do well is perpetuate violence, crime, and economic and racial injustice. So what would a system that provided meaningful justice look like? I'll suggest some goals for such a system and some ideas about how to construct it in my next post.
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I think a large part of the problem is the human tendency to seek shortcuts, rather than critically evaluating each unique case for the best possible solution. Sensitivity is not cost-effective, I think you have your finger right on the point there.
ReplyDeletePessimistically, it seems to me that we're doomed to repeat a cycle of letting those who profit from human misery make the rules before we get fed up and take back our power, only to let those rights slip away again. Comfort too often translates into complacency, and when you add in our rampant xenophobia and multi-cultural salad bowl of a population, it's a recipe for institutionalized schizophrenia, you know?
A big question is how we get the majority of people to care about others who are not like them? How can we shift the ethos of a whole country from fear and lack to love and abundance? The authoritarian father figure just isn't getting the job done.
I think that the ethos of fear really benefits power as well....I mean, we've seen that in the last decade, with fear being used to convince the country that it made sense to trade our freedoms for the sake of security. I think abundance is bad for capitalism. If we feel like we have enough, if we live in a state of love and happiness, we'll stop buying things. If we can be convinced that we're unfulfilled and insecure, we'll keep buying products that are supposed to make us happy and safe.
ReplyDeleteSo I guess I think we have kind of an unhappy complacency. People aren't satisfied with their lives but they don't realize that there's any other way, any better way.
You're right about the human tendency to take shortcuts. It's lazy thinking, and we all do it to make quick decisions, but when it comes to people's lives, I don't think it's appropriate to not consider those people individually. At the same time, I'm not convinced that sensitivity really is not cost-effective when we pour so much money into punishing people and fighting our "wars on crime." Also...also..."cost"...how do we define cost? The way our culture sees it, costs of time and money far outweigh human costs--lives destroyed--families broken. And "profit" means more money rather than mutual benefit. Our values are all backwards...
George Lakoff thinks that shifting people away from the authoritarian father figure model to the nurturant parent model begins with the language that we use--the way issues are "framed." He says that most people have both frames available, but the way they'll think about individual policy issues is controlled by what frame is used. I don't know if it's quite as simple as that, but it's definitely a useful tool for changing the terms of a debate.