Tuesday, February 19, 2013

And Justice For All

File Under:  What Defines Us

In 2012 the Supreme Court ruled that when sentencing juvenile offenders, the court must consider the offenders age in the determination of the sentence and parole stipulations - not to do so, would be Unconstitutional.  Many state courts and legislators are now faced with the question of what to do with the hundreds of individuals in their inmate population convicted as juveniles to sentences of life without possibility of parole, some for their role in very heinous crimes.  The Supreme Court ruling and rulings in favor of applying it retroactively no doubt raises the question: is this Justice?  To answer that question, first we must analyze what is the nature of Justice.

The Pillars of Justice

Justice, particularly criminal justice, has several components or characteristics which define the goals that Justice is to accomplish. Application of reason, ethics, and law in the resolution of deviations from the social contract can be defined by six ingredients, which when combined in the right proportion come together to form a recipe of true Justice.  These six ingredients, or Pillars of Justice are as follows in order of ascending importance:

Retribution: Punishing offenders for their offenses

This concept is simple, and I am sure it is one anyone can understand, which is why so often it is the first method of thought correction applied to very small children.  When you commit an offense (violate the terms of your social contract) you are assessed and must suffer a penalty that is (ideally) sufficiently proportionate to the offense.  Retribution is all about the individual and it has 3 primary goals.  First is to make the offender aware the offense is wrong according to societal standards.  Secondly, punishments create a loss for the wrongdoer thus creating pain and suffering for him or her ideally bringing them into the same emotional sphere as the victim of the wrongful act.  Finally,  punishments provide a negative association between that behavior and painful consequences so that when the offender contemplates that behavior again he or she is psychologically less likely to repeat it again.  Looking at the use of retribution as a correctional tool on both 3 and 30 year-olds you can easily see why punishment is lowest of the Pillars.  While it is certainly effective, even to the point of 100% effective, in accomplishing its first 2 goals, punishment alone is very hit or miss in effectively accomplishing its last and most important goal - at times being disastrously counterproductive.

Deterrence: Lowering likelihood of potential future offenses

What is the reason behind the rhetoric of Justice being swift, hard, and exact?  One reason is to make an example of the offender, to show society what happens to a person who violates his or her social contract.  This is only slightly more effective than direct punishment on the individual because people as a group are more easily swayed, whether for the good or the bad.  To illustrate, just think back to when you were a child and someone caught a beating for being bad; whether you believed you were at risk of receiving a beating yourself, everyone who witnessed the beating observed a cautionary period of silence and angelic behavior, avoiding coming into the line of sight of any adult.  Sometimes in society the dividing line between good and bad is just the reticence to risk exposure and undergo punishment.  While not an ideal way of operating a civil society, as people have already agreed not to commit wrongdoing, it keeps a certain amount of bad things from happening when civilized people stray from the path.  Therefore, Justice has to be sufficiently imposing without losing its fairness or love.  That is a tough bill to fulfill.  Enough people will not be deterred in totality especially if the rewards outweigh the risks (in the case of the amoral), or the risks never enter into the equation before they commit the offense (in the case of the insane or immature).  The system cannot make retribution pervasive or severe enough to be effective without derailing Justice.  Society could impose mandatory life and death sentences for every offense, yet criminality would persist and likely the grave nature of crimes by willful offenders would likely index itself to the monumental risk now inherent in wrongdoing.  Deterrence has a role but is still far from the bedrock principle of Justice.

Censure: Incapacitating singularly dangerous or unrepentant persons

Here we begin to get closer to the heart of the social contract, for which Justice ideally ensures not only everyone's compliance but surety in so complying.  A society without Justice is the equivalent of depositing your money in a bank with no physical or electronic security where none of the deposits were insured.  What incentive would you have to do such a thing, and what would stop an unscrupulous person from taking all your money?  Living in society we deposit some of our liberty and resources into the society in return for all the benefits of being a member of that society.  Justice is the security and insurance protecting that investment.  As a member of society when something goes wrong, a system is in place to deal with the wrong.  When censure is factored into the equation, Justice becomes like a firewall or anti-virus on your computer, keeping members of society safely over here and the former members of society who have broken their contracts that are now a risk to a safe, secure society isolated from them.  In a civilized society declaration of war or the execution of Justice are the only two legal and moral means the system can employ to restrict a person's right to "life, liberty, and pursuit of happiness."  Unsurprisingly, censure is one of the most easily abused and unbalanced aspects of Justice.  Stripping a citizen of their rights, freedoms, and remaining liberties, making them a sub-citizen or non-citizen is a condition that should be reserved for only the most singularly significant threats to the safety and security of society as demonstrated by either the immense nature of their wrongdoing or their unrepentant history of continual wrongdoing.  Far too often (in the use of censure) Justice careens off the track and crashes into something more closely resembling injustice, vindictiveness, or tyranny.

Rehabilitation:  Reforming, reeducating, and reintegrating offenders into society

Rehabilitation ascribes to the philosophy that no one should be automatically seen as a lost cause, that all members of society are important to society even the ones that have been temporarily removed due to their wrongdoing, and that the primary role of Justice is to continually shape society into a more perfect version of itself.  As such rehabilitation is somewhat at odds with the first 3 Pillars of Justice.  Why?  Because if you're giving someone the beating of their life, if you're beating that person bad enough to discourage anyone from doing what he or she did to incur your wrath, if you're beating them so badly his or her descendants to the third generation have traumatic memories of the beating, then you are probably not going to ever win that person back over to your side.  In fact you should probably look over your shoulder and sleep with one eye open until that person converts to Buddhism, and even then you probably should remain vigilant.  According to the high-minded individuals who came up with the idea of the penitentiary, the penitents would sit and contemplate how bad their actions were and how good they should have been, when they weren't being forced to do menial tasks or labor.  However, when you factor in mandatory punishments, harsh sentences, harsher prison conditions, lack of societal care, lack of hope, and dim prospects of success upon possible reintegration it becomes more likely the institutionalized mind spends more of its time contemplating bitterness, survival, and additional acts of wrongdoing.  This inverse reaction to a skewed application of Justice in tandem with societal factors external to the criminal justice system, leads to the levels of recidivism (repeat criminality) that plagues society and leads some to believe that rehabilitation is a lost cause.  Recidivism, however, should not be seen as an indictment against rehabilitation itself.

The purpose of a society is to accomplish as a people what we cannot accomplish as an individual.  As an individual one may or may not be able to forgive a wrongdoer for his or her actions, but if as a people a genuine opportunity presents itself to do just that, it must be seized.  A productive, law-abiding citizen contributing to society and honoring his or her commitment to the social contract is preferable to the alternatives available if you removed rehabilitation from Justice.  Not everyone can be or will be rehabilitated.  Not all reform is genuine, not all reeducation sticks, and not all efforts at reintegration are successful.  Nevertheless, it is incumbent upon society in the pursuit of Justice not to overlook opportunities to interject compassion, mercy, and forgiveness where it appears to be deserving.  This allows for healing both for the wronged and the wrongdoer.  Nothing good can grow sans healing, for without it society can only fester, decay, and die from its wounds.

Equity: Securing fairness

Fairness is the very foundation of the social contract, and for that reason it is no wonder it is so important to the concept of Justice.  Depending on how you reckon the issue, achieving equity might be the most difficult and least realized component in the pursuit of Justice.  As humans we are not clairvoyant, we cannot read minds or hearts, humans are not perfect, and no situation involving humans is perfect either.  Despite this, the rules by which we govern ourselves must strive to be and do all these things.  Creating equitable outcomes for all involved (the wronged, society, and the wrongdoer) is the hallmark that Justice has been served.  A Just solution may not be an amiable or satisfying solution but it must be fair; otherwise, the system fails in totality.

Restoration: compensating victims of an offense

This is the most important pillar because it deals with the most personal part of the social contract.  Whenever one individual violates his or her agreement one or more persons are harmed and thus, suffer a loss - even if that victim is only the offender his or herself.  In order to maintain universal buy-in to the social contract, anyone who suffers a loss should be compensated for that loss, and rightfully so.  No one should be forced to be incomplete due to the actions of another when the system can make that aggrieved person whole again.  This is a perfectly reasonable notion, yet execution of Justice becomes problematic when one is made incomplete by a loss of life.  How does an offender or the system make another person whole again after that, how do you compensate someone for the death of another?  That damage cannot be undone scientifically or in any practical method of merit when weighed against the value of a human life.  The Justice system has tried to assess a monetary value to a persons' life earnings, to their societal impact, to their emotional/spiritual value, yet no amount of money can replace someone or bring them back from the dead.  Eternal censure through permanent incarceration or death has also been promoted as a mode of recompense, yet again - neither bring back nor replace the dead.

At some point a line has to be drawn between vengeance, the righteous and loving pursuit of Justice, and vindictiveness, the unbalanced and relentless misapplication of will in an effort to assuage fear, anger, pain, or shame.  When someone has been thoroughly punished, their incarceration deters no one, they no longer need to be censured, they have been rehabilitated, the statute that keeps them incarcerated is not equitable, and neither they nor society can restore the victim - why continue to punish the reformed individual?  Is that not the essence of "cruel and unusual?"  When a statute no longer or never serves any one of the Pillars of Justice, Justice is no longer being served.  The system creates a new victim, a political prisoner or worse a casualty, and the offender now becomes the State.  This is Injustice.

Unfortunately, Justice cannot correct the societal ills which corrupt its efforts to be exact and precise, and it cannot correct itself without external force applied by passionate citizens.  Far too often what passes for Justice is not fair, has little effect on criminality, and does too little towards making the offender and the wrongdoer whole again.  However, with decisions like the Supreme Court decision and the Michigan decision we as a people have been given an opportunity to examine what motivates us in the pursuit of Justice, redress long-standing policies that have only left us socially and morally impoverished, and begin to repair a long broken criminal justice system.  In the years to come, after thoughtful deliberation and planning, thousands of individuals residing in America's correctional system who made horrible mistakes as children and were once condemned to never exist outside the walls of a prison but have since reformed will be reintegrated back into society and given a second chance on life.  This will not be a satisfying or amiable solution to many, but when those reformed individuals are made whole again Justice will be served.

"Civilization" by Justice from Audio, Video, Disco released 2011 on Ed Banger/Because/Elektra

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