Guest Post: The goal of the justice system

A guest post by Phronesis

There is an ongoing debate in NZ around violent crime, sentencing, and prison numbers. This debate seems to me to always miss the point because it never deals with the fundamental question of what are we actually trying to achieve? What is the goal here?

The system is often called the Justice system but this presupposes a number of problematic ideas. Primarily that the world is or could ever be a just and fair place. It is obvious to everyone that the world is not just and fair, and (sadly) only the deluded believe that it ever could be.

So, in our “justice” system a criminal who “does the crime” then “serves the time” is held to have paid some sort of price to balance out the harm that they caused to their victims. Justice is achieved by individuals receiving the punishment which they deserve for their crimes. Of course this punishment doesn’t help the victim in any way, it’s only practical use is as either a deterrent to potential offenders or in the case of prison, an effective limitation on further offending (against the public at least).

The logical endpoint of this punitive conception of justice is that when an offender is not entirely culpable for their actions then the punishment should be reduced. So when an offender has been exposed to a childhood of abuse, poverty of parental input, and general uncivilness we should punish them less than we would the average member of society. The reasoning is perfectly valid but the outcome is that we should punish the most violent and psychopathic criminals the least.

This is Justice but is this what we actually want?

Alternatively we could take the view that what we actually want is a society with the least amount of violence and victims as possible. How would we achieve this? Well when a violent offender comes before the courts we would look at their history of criminal behaviour, we would look at their upbringing, and we would remove the most violent and psychopathic offenders from society for the longest. Not it must be clear to punish them, but to protect society from their near inevitable reoffending. Prisons would not be places of punishment but exist primarily to physically prevent reoffending. I would like to see them be much nicer places to live but I suspect that given the nature of the occupants this would be difficult.

We actually already do this in the case of those violent offenders who are found to have such diminished capacity that they are not punishable for their crimes by reason of insanity. We don’t just let them out on the streets to commit further crimes, we attempt to help them get better, and we don’t let them out till they are (in theory at least).Our Justice system is failing because it accepts the reality that many of those who come before it have diminished responsibility for their crimes but then fails to consider that true Justice must consider present and future victims. In many ways it even lets down the criminals themselves by failing to prevent them from reoffending. Can you imagine what it would be like living with having committed violent crimes, often against those you love? We need to move away from a punitive understanding of justice and towards a preventative understanding. It is clear that threats of future punishment are insufficient to prevent crime, or there would be no crime now, so the reality is that only segregation will prevent repeat violent offenders from reoffending and creating more victims. It’s an unfortunate situation, particularly for the individuals in question, but the world really isn’t fair.