Is Our Criminal Justice Flawed? | Retributive Justice and the (il)logic Behind It

The fascinating lecture I shared with you that was given by a real prisoner got my brain neurons firing and thinking eventually diving into a research on the criminal justice system. I will share my thoughts in several posts, starting from the exploration of retributive justice onto which the criminal justice system around the world is mostly based on.

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Source

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So, without further ado let's jump into it:

Retributivism is a theory in penology by which an appropriate response to criminal act is a proportional punishment, inflicted by values or moral code of 'deserving' it. So, those believing in the theory think breaking the law should result with suffering.

Retributive justice justifies punishment merely with the breaking of law(s) acting without considering the consequences that punishing might cause in the future. But utilitarian perspective focuses on the consequences aiming to the maximum well being of society as a whole with the given three arguments ^{[From Wikipedia]}:

• Deterrence. The credible threat of punishment might lead people to make different choices; well-designed threats might lead people to make choices that maximize welfare. This matches some strong intuitions about just punishment: that it should generally be proportional to the crime.

• Rehabilitation. Punishment might make bad people into better ones. For the utilitarian, all that 'bad person' can mean is 'person who's likely to cause bad things (like suffering)'. So, utilitarianism could recommend punishment that changes someone such that they are less likely to cause bad things.

• Security/Incapacitation. Perhaps there are people who are irredeemable causers of bad things. If so, imprisoning them might maximize welfare by limiting their opportunities to cause harm and therefore the benefit lies within protecting society.

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Lets take a better look into the arguments and the potential errors in them:

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1. Deterrence

"The credible threat of punishment might lead people to make different choices; well-designed threats might lead people to make choices that maximize welfare. This matches some strong intuitions about just punishment: that it should generally be proportional to the crime."

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The argument for deterrence includes an assumption that people are fully rational in their decision making weighing the pros and cons, thus ending with a conclusion of not breaking laws for it would cause more harm than good for self. But it completely ignores all hidden influences affecting humans and the unconscious mind that largely controls our behavior. And we all have experienced this when trying to create/stop or transform a habit; it requires significant effort. Think something from your own life, like trying to quit your constant checking of your phone or starting a consistent exercising routine; Not that easy isn't it? If normal people are struggling with habits why would it be any easier for potentially unhealthy criminal. Yes, I'm talking criminality as a habit which obviously is not the whole truth of it nor is it the case with impulsive crimes but most of the criminals will repeat their acts if not rehabbed appropriately.

I would argue that when looking into a modern prisoners' early life, their circumstances weren't ideal, potentially with issues in family, maybe being exposed to violence and/or drugs in early life ect. I know such issues aren't justification for violent or criminal acts but saying that such things wouldn't contribute is ignorance; Our knowledge in psychology in many areas have shown that both, genetics and environment, play a role in human development and behavior.

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2. Rehabilitation

"Punishment might make bad people into better ones. For the utilitarian, all that 'bad person' can mean is 'person who's likely to cause bad things (like suffering)'. So, utilitarianism could recommend punishment that changes someone such that they are less likely to cause bad things."

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The given reason provided assumes that punishment can change the behavior of the one being punished. At first glance it makes sense; like does punishing a dog after a bad deed; Classical conditioning. But the problem lies in the fact that punishment after criminal deed is never immediate. The respond has to come just seconds after an unwanted or wished behavior for it to be endorsed, to let the association and a sense of cause and effect between an act and a result to form. But in the real world respond to criminal act is noway near immediate: First you must get caught, then there could be multiple trials and only the punishment is put into practice.

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"One should be able to know that punishment was the result of doing against the law."

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Fair point, except it again falsely assumes humans being fully rational calculators. Secondly, criminals might realize that they are being punished because of their acts but keep blaming others or society of driving him/her into the acts of committing actions against the law.

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3. Security/Incapacitation

"Perhaps there are people who are irredeemable causers of bad things. If so, imprisoning them might maximize welfare by limiting their opportunities to cause harm and therefore the benefit lies within protecting society."

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Some people potentially being "irredeemable causers of bad things", is a bit questionable to say the least. Most people have the potential to do 'good' or 'bad' if enforced enough to either way by the environment.

Also this line of thinking could prove to be harmful in the sense of if we believe people are born evil, we neglect the factors potentially contributing to the harmful behavior, thus not trying to fix it for the future generations.

Essentially my argument is that if all the people were given ideal conditions from the point they are born there would be less criminality. Note: less, it still can't be said for sure if some people, even in ideal conditions, would still commit crimes. I realize there are other contributing factors as well.

The second part of the argument of imprisonment increasing welfare by protecting the regular people in society has some validity to it. However, imprisonment itself isn't the worst punish but in typical prison environment it is coupled with something even worse which isn't even recognized as a form of punishment in legal system per se (correct me if I'm wrong):

The social punishment

Human is an extremely social animal for whom it is destructive to spend extended amounts of times isolated against his will or in a hostile environment, always being in a high stress "fight or flight"-state. And this is actually a much worse punishment than loosing one's freedom. Social struggle doesn't actually have to come with imprisonment and there currently are actual existing system providing that. But more of that I will explore later with restorative justice.