Wankerous redux

[sacredchao]

I was looking through some older entries in LJ and, upon reading this one I realised that the idea that had sparked off this whole train of thought in the first place had been completely missed in tangential waffling.

The thing that started it was was the question "Why do we punish those who've done something wrong?" I'm not saying that there aren't good reason to have punitive measures and indeed when it's touched on at all, we hear mutterings about deterrence and rehabilitation and suchlike, but I don't find it convincing. If those really were the reason for punishing those who commit crimes, why are punishments varied according to crime? Why doesn't intent carry more weight than the crime committed? Most tellingly, why do we talk about what the criminal deserves when sentences are discussed? As near as I can tell, the main purpose of sentencing is to make the criminal suffer. This is something that is so deeply ingrained that even once I'd realised that this is essentially a sanitised variant of the "eye for an eye" idea of justice, I was still coming up with phrases such as "getting away with" crimes while trying to nut out exactly what process was being put into action.

The fact that this was really all about visiting suffering on someone was brought home to me when reading through the vast collective schadenfreude that accompanied the extradition of Tony Mokbel. I'd like to be clear on the fact that I'm not sympathising with this man in any way. On a purely pragmatic basis, he needs to be removed from the community; he's a hideously destructive person. Having said that, watching the general reaction to him being brought back to Australia for prosecution was something I found disturbing. I got the impression that there was disappointment that he wasn't to be paraded through the streets in an open cart to be pelted with filth. This wasn't about being pleased that process of law was working, it was about watching him squirm. The law apparently works because Tony Mokbel was sad. The wrangling through the courts of Greece to get him extradited had the flavour in the media of some bizarre retributive foreplay. We watched him squirm, laughed at the dreadful wig, and with every spasming wriggle we nudged each other and grinned. "Bet he's shitting himself now." None of this fixed any problems, whether systemic such as the destructive narcotics trade or specific, such as any one of the countless lives demolished. It was purely and simply a circus.

So what are we trying to do with our penal system? Note that I'm really seriously NOT suggesting that the idea of trying and penalising criminals be abolished. That would be disastrous as the sociopathic amongst us realised that there was to be no check on their behaviour. What I'm questioning is the motivation. That motivation in turn informs the nature of sentencing and what we do with criminals while they're in custody. It takes the petty criminal, often a criminal because they have no other strategy by which to live and simply slaps them around and throws them back into the community, more disillusioned and less able to deal with life than before. It also releases clearly dangerous psychopaths back into the community because they've "done their time". In other words, we've made them sad for long enough and the danger that they pose to the general public is regrettable but not the point.

This is what I meant when I spoke of "a serious failing of our social and legal structure as a whole". It's an ethical framework which we don't see because it's so pervasive but which belongs in the past with the executions and mutilations which it once engendered, and which it still does in many parts of the world. We really need to think about how we deal with those who are ill enough that they visit violence on others, and they are ill because otherwise we're considering assault, murder and rape acts which can be committed by sane people. We need to be prepared to take the petty thieves and other sundry criminals and say "Your life strategies are crap and they're hurting both you and others and you're going to have to sort yourself out and we're going to help you with that. No, you don't have a choice in this." It's either that or we just keep taking an eye for an eye and feuding with ourselves which doesn't work any better now than it ever has.

Comments

[jordan179.livejournal.com]

If the law does not punish criminals, then their victims will be increasingly likely to take the law into their own hands. The only way for a rehabilitative system of justice to work without doing this is if the criminals are also required to make fairly serious restitution to their victims, or (in the case of murders) to their relatives.

[sacred-chao.livejournal.com]

I completely agree with the restitution part of it. This is a sensible and just thing. If you're hurt through no fault of your own then by all means there should be a process in place to minimise that injury. This is actually a time honoured idea...older law codes specifically had prescribed fines to be paid by the offender to the victim. In English law, which is largely what we work from, that goes back at least as far as Æthelbert, so right at the start of the 7th century, but it'd found even further back in other penal codes such as Roman.

The victims taking the law into their own hands is part of the vengeance mindset which I'm talking about though and as such forms part of the problem. Personal illegal feuds are just as damaging as legally sanctioned penalties, indeed moreso. That's largely what the ancient aforementioned fines were intended to prevent. Note that I'm not proposing a fix here, which I know is a lazy and wishy-washy thing, but I'm not going to pretend that I'm cleverer than the uncounted thousands who've preceeded me on this and who have put far more effort into examining the questions I've raised. What I'm saying is that simple punishment is a futile and in some instances counterproductive exercise. What we need is thoughful penalties which may or may not involve punishment as a deterrent and which in any case have as a goal something other than simply making the criminal suffer.

[sacred-chao.livejournal.com]

Incidentally, you appear to have missed the bit where I said "Note that I'm really seriously NOT suggesting that the idea of trying and penalising criminals be abolished."

It Seems To Be About Sending Messages...

[bar-barra.livejournal.com]

... although the best message to criminals who do crime for profit is what we are beginning to do: viz inform them that their ill-gotten gains will be taxed at 100%. And mean it. For the rest, it's a long-running soap opera in which many chances are given to petty crims to reform. They get a number of chances, by and large, and each time they are informed that they are that much closer to the Jailhouse Rock. At every chance, more and more take the hint until only the truly stupid and/or addicted get to hear that big door slam shut.

As far as I can tell, it seems to work pretty well. We are not soft on crime, and we do send reasonably appropriate signals most of the time. We are, after all, still emerging from a time in which seeing criminals tortured to death was considered a pretty cool thing to do. We don't do that any more, thank heaven. We also appear to have very different prisons for very different people. The hard cases get the truly awful ones, while kids who have blundered badly tend to get 6 months or a year in the country in which to learn a skill and maybe kick the habit.

Offhand, I can't think of any major improvements we could make, although I am open to suggestions.