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.