The Fiction of Deterrence and the Immorality of 'Retributive Justice'
Last edited Fri Apr 10, 2015, 09:51 PM - Edit history (2)
Our criminal justice system is broken. We all (or almost all) know it, and we all say it. Prisoners, both violent and non-violent, and among whom are found those that have been rightfully as well as wrongfully convicted, are warehoused under brutal and inhumane conditions that are virtually guaranteed to make violent criminals more violent, to make non-violent criminals violent, and, in some cases, to force people who never before had been criminals to turn to crime, upon their release, merely to survive. We keep people in solitary confinement for weeks or months or even years on end, creating permanent psychological damage. A criminal justice system that is subject to the same human mistakes, failings and corruptions as all other systems devised by humans nevertheless presumes, in some cases, to impose ultimate, irrevocable punishment -- death -- that eliminates any and all possibility of redress in light of any mistakes or failings that may later come to light. Yet, when it comes to the criminal penalties imposed on specific, notorious criminals who have committed crimes we find to be particularly abhorrent or heinous, and about whose guilt we firmly believe we are certain, many of us are all too willing to set aside our commitment to moral and, in some cases, even legal, principle in order to satisfy a very human, but very base, desire for vengeance.
There are two prevailing concepts that are used to rationalize our broken criminal justice system. First is the notion of deterrence. If we impose harsh, brutal sentences upon people who commit crimes, then would-be criminals will think twice before committing such crimes -- or so goes the myth we tell ourselves, despite a dearth of evidence that such deterrent effect actually exists. I have come to believe the entire premise is a faulty one. First, it fails to consider that the majority of violent crimes occur in the heat of passion, in which the emotions overtake rational thought processes. Second, even in the cases involving violent crimes that are premeditated and carefully planned, a theory of deterrence rests, in the first place, on the idea that a would-be criminal undertakes a rational cost-benefit analysis of a crime he or she may be contemplating, much as a careful investor might weigh potential upside gain against potential downside loss. This is, I believe, very rarely what actually happens in the commission of criminal acts. I believe that in most cases, those who commit crimes do so having already convinced themselves, often quite irrationally, they won't get caught, and not because the potential consequences of getting caught are light enough to make the crime worth the risk of committing it. At the point they commit the crime, all thought of getting caught, and of potential consequences that would flow from that, have been put out of their minds entirely. So much for any deterrent effect!
The second concept, an idea very popular with some criminologists, is the idea of "retributive justice" -- i.e., the idea that punishing people for misdeeds is a morally justifiable, and even desirable, end in itself, that need not take account of any rehabilitative imperative or even any consideration for the well-being of the convicted criminal. The idea is that punishment somehow "balances" some cosmic (but never identified) scale of 'justice.' This, it seems to me, amounts to little more than a bunch of highfalutin, meaningless mumbo-jumbo aimed at rationalizing s system that is otherwise indefensible under any cogent system of ethics or morality. It is a way of justifying ourselves in our collective willingness to subordinate ethics and morality to the satisfaction of one of our most base human emotions. In short, the term "retributive justice" is but a gussied up term for plain old (but less acceptable in polite company) vengeance.
Some, of course, will protest that they reserve this kind of rationalization for the "worst of the worst," that what {insert name of notorious criminal of choice here} did was so uniquely heinous that he or she "deserves" whatever might be coming to him or her. But, as I pointed out yesterday in another thread, the problem with this rationale is that:
. . .invariably, we are talking about more than one case or one individual. And regardless of how heinous that one individual's actions may have been, invariably, some not-so-heinous criminals get caught up in it, too. The article mentions one Jack Powers, imprisoned for burglary as a kid, released in 1982. then married and started two businesses, both of which were bankrupt by the end of the decade. He began robbing banks -- BUT WAS NEVER ARMED, he merely passed notes to the teller demanding money. IN prison, a friend of his was murdered by the Aryan Brotherhood. Powers cooperated with prosecutors, believing he could cut a deal to get out of prison earlier, but then had to be placed in protective custody. When he got wind that prison officials were planning on transferring him to the general population, which would have put him at risk for being killed for his role in the convictions of four members of the Aryan Brotherhood, he escaped. So he wound up getting sent to ADX because he was deemed a flight risk, never mind that he was fleeing for his life.
When we talk about the criminal justice and penal systems, the conditions in prisons or the death penalty, it is important to remember that we are NEVER talking about just a single, individual case, and that invariably, people who do not remotely deserve to be kept under such brutal conditions inevitably will be. Any moral or ethical approach to these issues MUST factor in not only the 'easy' cases involving notorious, brutal criminals, but also the harder cases, which often involve less violent, or even non-violent such as Powers, prisoners who will inevitably get swept up into the system.
Society certainly has a right to protect itself by separating from the population those deemed to be a threat to others. But if a society is to call itself 'moral' or 'just,' or even 'civilized' for that matter, that right of protecting the wider society from harm carries no implicit right to abuse, harm or torture convicted criminals under some ethically tortured notion of 'retributive justice' or on the basis of an utterly fictitious narrative of 'deterrence.' And no system of ethics or morals can be called cogent if it provides 'carve outs' for cases that particularly enrage us, no matter how heinous the crime and no matter how understandable, and even justifiable, our collective rage.
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