Redefining Justice, Part 2: Moving From Fear to Mutual Benefit

Kohlberg's stages of moral development provide a psychological concept I think is relevant to the creation of an evolved society and therefore an evolved justice system. Currently, our justice system works on the lowest level of the hierarchy--using fear of punishment to exert control. It's pretty well established by experts in child development that negative reinforcement or punishment is the least effective way to change behaviors. Positive reinforcement--reward for good behavior--is more effective (Kohlberg's stage 2 and 3). An ideal system would work primarily on the level of Kohlberg's stage 5--in which the system is truly designed to benefit everyone and in which exceptions are provided for--and support an approach to stage 6 (in which criminal justice should no longer be necessary because of a more expansive or universal consciousness). The goal of such a system would be to render itself obsolete.

....Or, what about a system that dealt with people on their individual levels of moral development? If you've got someone who only understands Stage 1, then sure, mere punishment may be appropriate. But most adults probably operate somewhere between Stage 2 and Stage 5. Doesn't it make more sense to change people's behavior by meeting them at their level of understanding?

Another set of ideas that seems relevant is Lakoff's metaphoric contrast of the strict father morality common to conservative thought to the nurturing parent model followed by liberal moral philosophy. The strict father morality assumes the worst of humanity--that children and by extension people have evil inherent in their nature and need to be tightly controlled for their own benefit--while the nurturing parent assumes the best, protecting and empowering his or her children to make the best choices for themselves independently. Another well-known tenet of child development, especially education, is that expectations can be self-fulfilling prophecies. How can people develop higher moral functioning if they are never given the opportunity to exercise it? What kind of parent do we want our governing system to emulate?

Here are some characteristics that I believe would be essential to a working, nurturant justice system.

Justice is available to all and not for sale. Equal justice under the law is a right, not a privilege. Putting a premium on effective legal representation makes this right meaningless. One way to restore meaning to the right of representation would be to abolish private criminal practice; another way would be to either provide private representation to everyone, or hire and pay enough public defenders to represent everyone as if they were paying clients. However, I tend to favor a more radical solution: eliminate our current adversarial system and therefore the need to create an equal playing field. I may talk about this in more detail later.

A focus on finding the truth, rather than assigning blame. In many cases, law enforcement and courts are looking for a scapegoat for societal wrongs and individual suffering, rather than trying to discover the truth of what really happened. If someone gets punished, they can say that justice is done and keep the public happy. (This is another argument against the adversarial system, in which both sides are encouraged to focus on winning rather than finding and revealing the truth, despite the extensive lip service paid to fact finding.)

Proactive rather than prescriptive crime prevention. Harsh penalties do not appreciably reduce crime. Equitable economic and social policies would do far more towards deterrence. One of the major motivations for people to engage in crime is financial gain, and for the poor folks that make up the majority of our prison population, financial need. Eliminating poverty and economic need would eliminate the motive for a large percentage of property crime. Furthermore, happy, empowered people are less likely to experience and express violently aggressive urges, and they are more likely to look kindly on a system of governance that truly protects and provides for them.

Cultural factors also play into our astronomical rates of violent crime. It's hardly surprising that a patriarchal culture which upholds violence, hard control, and power over as the defining traits of masculinity would suffer from high rates of antisocial behavior. If to be masculine is to be powerful, to be the most masculine is to be the most powerful, and beating, raping, or killing someone may seem worth it to gain that kind of power--especially to those who have been otherwise completely disempowered.

Focus on rehabilitation rather than retribution. Assuming that there will always be people who cannot be rehabilitated, that number is very small compared to the total number of criminal offenders. For most, when isolation from society is warranted due to antisocial or violent tendencies, that isolation should be in the context of treatment and education rather than punishment, and the term of isolation should be based on improvement rather than set penalties. Efforts should be made to determine what led people to offend in the first place and how to change that internal or external situation. Treatment should focus on individual empowerment.

I do feel that great care should be taken with sexual predators and abusers, those who prey on the weak and tend to repeat their patterns of violence. We don't really know what makes a sociopath or a compulsive sex offender. It's my suspicion that these individual sicknesses come from a greater, societal sickness, some of which is based in traditional models of masculinity and some of which emerges from the extreme amounts of shame imposed upon sexual desire. However, once entrenched, those predatory tendencies may be difficult or impossible to change. In such extreme situations, the goal should be to remove that person completely from any opportunity of recidivism, by life imprisonment or capital punishment, provided it could be administered fairly. (I am not a moral absolutist: I believe that there are situations in which killing is justified.)

Let the punishment fit the crime. We currently use imprisonment as a catch-all penalty for felonies and even some misdemeanors. As mentioned in the first part, a few years in prison can escalate criminal tendencies and behavior. Instead, consequences for criminal behavior should be specific in nature to the behavior itself, not just in degree. It should focus on creating a remedy for any harm done to its victims, if possible, while reducing the motivation to commit similar crimes.

Eliminate social policies that create opportunities for crime. I'm thinking drug policy, here. Our society's regulation of recreational drugs, including its arbitrary exception for alcohol, is completely illogical and raises millions of dollars for people willing to break the law. Fully acknowledging the damage wrought by addiction and the health risks associated with psychoactive drugs, these substances will always be in demand. Outlawing them creates a market and inflates prices, increasing the reward for import, export, and distribution. Make them legal, regulate them, and you put drug lords out of business. The fact that we haven't gotten here yet--here, at least--is ridiculous.

This is a brainstorming post. The system I envision is one which is truth-centered rather than adversarial, is protective rather than retributive, is focused on positive individual outcomes for offenders and victims, is fair and proportional in assigning consequences, operates in the context of sane cultural values, and is backed up by rational, coherent, and compassionate social policies.

I think values are a big part of this discussion, actually. Shifting the value systems of our culture from capitalist self-interest to a more community-based, morally advanced, universal awareness would be essential to the attainment of truly just governance. As always when it comes to cultural change, there's a chicken and egg problem: it's hard to institutionalize a value system if people don't subscribe to that system, and it's hard to change cultural values within a system that is so entrenched in the old value system.

Redefining Justice, Part 1: Orwell Would Be Proud

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.