In the US, the criminal justice system is not concerned primarily with reforming criminals or deterring future crimes. It’s concerned mostly with making the lives of people convicted or accused of crimes (many of whom are innocent or otherwise had extenuating circumstances) absolutely miserable, retribution taken to the extreme (tangentially, I’m not against retribution in principle, but don’t think it should always be the only reason to punish someone). And any sort of “non-compliance” while retribution is being exacted leads to the misery being dialed up. Is there any civilized country other than the US where long prison terms in sadistic conditions is considered “normal”?
Retribution should not be a part of any justice system. As retribution is not justice.
Restitution, Rehabilitation and isolation should be the 3 goals of a true justice system.
Victims should have a path to restitution when possible (some crimes this is not)
Criminals should have a path to rehabilitation when possible (some crimes this is not)
For when the other 2 fail, Isolation is the final step, isolation means we isolate people that have been proven to be a danger to others and do not have the ability to be rehabilitated.
Retribution is just unethical, it makes the population of a system of retribution to be no better than the criminals they are abusing.
Support for retribution is a visceral reaction but holds no value or place if the goal is justice.
Retribution is perhaps the most intuitive — and the most questionable — aim of punishment in the criminal law. Quite contrary to the idea of rehabilitation and distinct from the utilitarian purposes of restraint and deterrence, the purpose of retribution is actively to injure criminal offenders, ideally in proportion with their injuries to society, and so expiate them of guilt.
Why Is Retribution Used?
The impulse to do harm to someone who does harm to you is older than human society, older than the human race itself (go to the zoo and watch the monkey cage for a demonstration.) It's also one of the most powerful human impulses — so powerful that at times it can overwhelm all else. One of the hallmarks of civilization is to relinquish the personal right to act on this impulse, and transfer responsibility for retribution to some governing body that acts, presumably, on behalf of society entire. When society executes retribution on criminals by means of fines, incarceration or death, these punishments are a social expression of the personal vengeance the criminal's victims feel, rationally confined (it is hoped) to what is best for society as a whole.
Of course there are more sophisticated ways of thinking about retribution, and it's a good idea to be familiar with them since a judge (and that other kind of judge, the criminal law professor) is unlikely to accept "because it's a natural impulse" as justification for retribution in punishment. And with good reason.
Is Retribution Ethical?
While "it's natural" tends not to carry much weight in the criminal law, "it's morally right" can. Moral feelings and convictions are considered, even by the criminal law, to be some of the most powerful and binding expressions of our humanity. In binding criminal trial juries to restrict guilty verdicts to situations of the highest certainty, "beyond a reasonable doubt" is also often described as "to a moral certainty." It is to their moral feelings of what is truly right that jury members are asked to look before delivering a verdict. It's perhaps not too much of a stretch, then, to argue that it's morally right to make criminals suffer as their victims have suffered, if that's the way one's moral certainty points.
No matter what one's moral feelings are about inflicting deliberate harm on a human being, the majority of the U.S. citizenry still holds that it's right to exact retribution on criminal offenders, sometimes even to the point of death. This is almost certainly true of the majority of victims, and their loved ones, for whom equanimity becomes more and more difficult depending on the severity of the crime. What rape victim does not wish to see her attacker suffer? What parent does not hate the one who killed their child? The outrage that would result from leaving these passions for revenge unsatisfied might be seen as a dramatic failure of the entire criminal justice system. It's a good argument for retributive justice, then, that in this world public vengeance is necessary in order to avoid the chaos ensuing from individuals taking revenge into their own hands. And, until the moral certainty of a majority of society points towards compassion rather than revenge, this is the form the criminal law must take.
>>the purpose of retribution is actively to injure criminal offenders, ideally in proportion with their injuries to society
Eye for an Eye leaves everyone blind.
Further I have always taken issue with the concept of "injury to society", I am an individualist so to me society is just a bunch of individuals working under voluntary cooperation
Criminals injure an individual not society, thus any restitution is owed to individuals not society at large
>>The impulse to do harm to someone who does harm to you is older than human society, older than the human race itself
Granted however the entire purpose of civilization, especially western civilization is to become greater than are base instincts, to allow reason and logic to rule over emotion.
Civilization to me is not a conduit to "relinquish the personal right to act on this impulse, and transfer responsibility for retribution to some governing body" as no one has a personal right to act in retribution, and since no one has that right they have no ability to transfer that right to the governing body.
The only ethical use of force is in defense, imitation of force is always unethical
Fines should be in service to restitution, including a "pain and suffering" fine which is often viewed today as "punishment" but in reality is restitution for the victim(s).
The problem is we have removed the concept of restitution from the criminal system and leave it to the domain of civil law almost exclusively with a few exceptions (normally property crimes)
Incarceration should be about rehabilitation and/or removal from society as a defense not retribution. The Prison system should be humane, where inmates would not be physically abused by other inmates or guards, not be subjected to systematic physical or psychological abuse, should be provided basic nutrition, and health care, etc
This can not be said to be true for the US prison system today
It should also be a place to get mental health treatments, and even learn new skills or other methods to return as a productive member of society
>> the majority of the U.S. citizenry still holds that it's right to exact retribution on criminal offenders
This highlights why I will never support a direct democracy. Mob rule almost always the worst outcome
>>This is almost certainly true of the majority of victims
Which is why we separate victims from being judge and jury, emotional responses are not good for civilization
>>What rape victim does not wish to see her attacker suffer? What parent does not hate the one who killed their child?
Many, it is not uncommon for victims to want to see their attacker isolate, not not be able to hurt them or anyone else again. I believe it would be uncommon for victims to advocate torture, abuse or suffering. People that maintain this desire past a grieving or shock period psychologically are probably not far removed from the criminals they are waiting to abuse.
>>until the moral certainty of a majority of society points towards compassion rather than revenge, this is the form the criminal law must take.
No, I neither agree that the majority of society points to aggression nor agree that even if it did then that is the form society must take. As I said before mob rule is almost never the correct outcome. If you look back in history you will see all kinds of atrocities committed due to statements like the one you just made "Well the people demand it so we must do X".
The concept of human rights and equality demands we reject retribution as the basis of criminal justice
You have made a series of claims, but not given any reasons to back them up. What theory of ethics/justice are you invoking, when you claim that retribution/deterrence is unethical and should not be a goal of our justice system. If a billionaire is found guilty of pedophilia, and offers to build for himself a lifetime "prison" that is really a 5-star resort, should he be allowed to do so? According to your argument, the answer is yes, as long as he is equally isolated.
Mainly Zero-Aggression principle, under which the only ethical use of force is for defense of either yourself or others, and only to the extent eliminate the aggressive force being applied.
>>If a billionaire is found guilty of pedophilia, and offers to build for himself a lifetime "prison" that is really a 5-star resort, should he be allowed to do so?
That is a strawman and a red herring all in one. No a person should not be allowed to build their own guided cage, however the prison s/he is sent to should be humane, where s/he would not be physically abused by other inmates or guards, not be subjected to physical or psychological abuse, should be provided basic nutrition, and health care, etc
This can not be said to be true for the US prison system today
Further the system I advocate for would provide for massive amounts of restitution for the victim(s) of this billionaire, unlike the system of today which holds the criminal has a "debt to society" but not necessarily their victims where any restitution would be secondary to the retribution offered to society as "payment" for this debt
I advocate for victim restitution being the primary goal, and hold that society is owed nothing in the equation.
This once a person is isolated from society and can not harm anyone, continued abuse or violence is unethical, "punishment" in captivity is unethical.
>> If a billionaire is found guilty of pedophilia, and offers to build for himself a lifetime "prison" that is really a 5-star resort, should he be allowed to do so?
> That is a strawman and a red herring all in one. No a person should not be allowed to build their own guided cage
This is a direct implication of what you're proposing. The fact that you don't like the implication, doesn't make it a strawman.
You stated that the only goals of the criminal justice system should be rehabilitation, restitution and isolation. Allowing a billionaire pedophile to sequester themselves in a self-funded 5-star resort, is consistent with all of your stated goals, while still being minimally aggressive, and maximizing their welfare. If you find this objectionable, you need to revise your earlier claim.
Luckily I did not say that. Retribution and deterrence are very different concepts and objectives. However, most retributive actions also happen to have a deterrent effect. Ie, sending someone to prison as retribution, will also have a deterrent effect on other would-be criminals. This is an empirically verifiable claim with many supporting studies that you can find via a quick google search.
Retribution is needed to prevent vigilante justice and to cause fear to potential criminals. Remember the story of the drunk driver who killed several people in a crash [0]? He was "punished" by going to a club med like rehab facility where he was taught about the wrongs of his actions by horse back riding. Imagine if all drunk drivers were punished that way?
I am not familiar with the case you are speaking of, and often times people over state what happens in minimum security facilities
also I see you one of many that confuse rehabilitation with giving people a slap on the hand, or "club med" type of facilities.
Retribution is in no way needed to prevent Vigilantism (Vigilantism is never justified or justice). Actual justice, and restitution prevents that just fine.
Rehabilitation has many aspects, and in the case of addiction it would include a medical and psychological treatment for that addiction
There has never been any study that shows tossing a person in a prison with no treatment does anything to solve the underlying issue which just leads to recidivism, in the case of a drunk driver, it is likely they they were caught many many times leading up to their imprisonment, this highlights the failure of the retribution system and where a rehabilitation system would achieve a better outcome
Added source of the case to the OP. And yes, retribution is designed to prevent vigilantism. As that is psychology I can't really give a better source than [0]. Obviously retribution is not meant to go by itself, but along with rehabilitation.
And you believe we should not treat minors different than Adults? this is another area where i disagree with many, as I 100% disagree with this modern trend of prosecuting teens as adults
Why? Do you lack the understanding of how the human mind develops?
I am curious also, do you support the trend of digging up 30 year old comments from peoples past and holding them to account for them, aka Cancel Culture?
I am wondering is this mentality is linked
I am a firm believer in second chances, automatic expungement of criminal records, and various other things that do not hang past mistakes over peoples head for the rest of their lives
One of those is having a separate system for juvenile's as when understand impulse control does not really form in humans until around 20-23 years of age.
I would like science to inform our justice system, not lizard brain emotions for revenge
