Angina Monologue 21

His Majesty has continued to ruminate on crime and punishment.

The bacon and eggs are superb. Won’t you have some?

His Majesty has been taunting me like this for some years, actually.

Make no mistake, Lord Vader. The purpose of a criminal justice system is to make the public tremble before the law. All other considerations are secondary.

For example, incapacitation is a valuable consequence of criminal justice, but it is not central to it. Consider that there are two principal means of incapacitation employed by the law. The first is capital punishment; the second, imprisonment. Capital punishment has historically been rather freely used to incapacitate, but it should rightly be reserved for the proportionate punishment of premeditated murder. Its use for lesser crimes risks making the public tremble with anger at the law, rather than tremble with fear before the law. Imprisonment, on the other hand, was hardly viewed as a punishment per se until relatively modern times. Until perhaps two centuries ago, the purpose of prisons was to confine suspects awaiting trial or convicts awaiting the actual punishment awarded them under the law. The actual punishment was execution, flogging, hard labor, or a fine that the prisoner could not immediately pay. (The latter underscores to a Christian parable whose implications Joseph Smith seems to have understood better than most when writing the Book of Mormon.)

You will note the inconsistency introduced into our law by the modern view that imprisonment is punishment per se. It means that the suspect being detained is already being punished, before actually being convicted. The alternative of bail is not always available for indigent or particularly dangerous suspects.  This is another reality that is not optional. The best one can do is to make pretrial confinement as comfortable and pleasant as possible, without actually making it so pleasant that a perverse incentive for petty crime is created. And there will be suspects who will proceed to trash the most pleasant of pretrial lodgings, just because they can. I will personally lose little sleep over administrative punishment of such suspects, in the form of transfer to an unpleasantly bare cell, on the grounds that vandalism of public property under the very eyes of the law justifies summary administrative punishment.

But, to get back to the main point: Incapacitation by imprisonment was not viewed as a form of criminal punishment until historically recent times. It seems to follow that incapacitation, however welcome, is not the main point of criminal law.

Vengeance, or retribution if you prefer, is another valuable consequence of criminal justice that is nonetheless not central to it. Aeschylus made that point with Eumenides and it is still valid. A criminal justice system restraints vengeance.

Likewise restitution. To the extent that criminal justice provides restitution for the harm done by a criminal, that is valuable. But it is very often the case that victims must pursue a civil tort action, separate from the criminal action, if they want any restitution for the harm done by a criminal.

The least plausible purpose one can claim for criminal justice (which is unfortunate, since it would seem the most desirable) is rehabilitation.

I think there are two kinds of criminals. The first are individuals who are largely normal, but are either unaware of the requirements of the law, or are testing the limits of the law (these would tend to be young criminals), or have a reasoned conviction that a particular law is unjust, or have simply convinced themselves that their criminal act doesn’t do any real harm and they can get away with it, to their benefit. But the much more common kind of criminal, particularly among habitual criminals, is the sociopath. These are not normal people; they have a definite cognitive deficit such that they do not realistically calculate the likely outcomes of their actions, nor include the effects on others in their calculations.

The normal person who is unaware of the requirements of the law needs education, not punishment. However, there must be some painful consequences to their crimes, lest one create a perverse incentive to remain ignorant. Nor can one accept that a normal person can plead ignorance of acts that are malum in se. But if a government insists on making a swarm of actions malum prohibitum, then that government  needs to widely publicize its laws — a notice in the back page of the Federal Register is an invitation for the regulation to be unwittingly violated. Your courts are soon swamped. Of course, this can be advantageous under a regime of selective prosecution, where a citizen punished for violating an obscure regulation is really being punished for a lawful act the government dislikes, but there are limits to how far you can take that in a democracy. I cannot but be impressed by some of the ways the Obama administration has successfully tested those limits.

On the other hand, youngsters testing the limits of the law need sharp and swift punishment. This gets back to my original point that the purpose of a criminal justice system is to make citizens tremble before the law.  I am inclined to think that decisions about how to punish a particular crime ought to be seen through the lenses of a single male between 14 and 21 years of age who is abundantly endowed with testosterone but otherwise basically normal.

Adults who have convinced themselves that they can get away with it and no one is really hurt are a similar case to the teenage misdemeanant, though the punishment should probably be harsher and should involved confrontation with the real consequences of criminal actions like their own. One might require an adult who was arrested while not obviously drunk, but with a blood alcohol level above the presumptive level of intoxication, to work at an emergency room, or join a police patrol, or work in a morgue long enough to see a few mangled bodies.  This does not work if the crime does real harm, but of a diffuse nature, as with counterfeiting small bills or failing to pay taxes. Perhaps this is why these kinds of crimes were quite severely punished in the past.

The person who breaks a law out of conviction, such as the Christian baker who refuses to bake a cake for a gay marriage, is a particularly troublesome criminal. Even if the law is arguably as unjust as the criminal claims, to change the law is to show weakness. Fortunately, in a highly regulated regime, one can usually find some regulatory violations to tack onto the indictment, to poison the well. It is probably better to anticipate such principled objections, and provide narrow exemptions. One can then turn prosecutions into contests over whether the exemption applies rather than whether the law is just. Fortunately, principled people tend to be reflexively law-abiding, and so such cases will be uncommon.

This leaves us with the sociopath, who makes up the majority of repeat criminals. We must start with the admission that we have no idea how to reform such people. In fact, most attempts at reform will end with the sociopath clever-Hansing the psychologist charged with his rehabilitation, to the detriment of the wider public. We can only incapacitate the worst offenders with long prison sentences.

This is a bit of a tangent, but I wonder if sociopaths are people born without a soul. All the hardware is there, but the divine spark is missing.

I sense a contradiction with your original point.

Tosh. If the public does not tremble before the law, the prisons will soon be full of borderline sociopaths who would otherwise be deterred, or else empty. And I cheerfully acknowledged earlier that incapacitation was a valuable side effect of criminal justice; it just isn’t the main point.

So is there some kind of political platform hidden in all this?

Of course: Law and Order. It is almost impossible to lose politically with a law and order platform. While there is a growing constituency that interprets Law and Order as Police Oppression, the truth is that no constituency needs order worse than those who are now decrying police brutality. The trick is to help them see that. And you’re my ace in the hole here, Lord Vader. No one knows your race, and it is amazing how almost all those you have choked in the line of duty have been white males, usually well over 30 years of age and wearing a dark uniform. This can be turned to our advantage.

We can link this to our promises of educational reform, and promise that children in the inner cities will now be able to walk safely to schools that are better than ever, where their learning will not be interrupted by the dregs of society.

There seems to be little place for mercy in this platform.

Your own ancient superstitions say that mercy cannot rob justice. Beware of false mercy, which is not concerned with the truth and therefore cannot serve charity. He who is compassionate to the cruel will ultimately become cruel to the compassionate.

Requiring the minister of justice to also be compassionate is an impossible conflict of interest.

I think His Majesty may be on to something there. There must be mercy, but it cannot come from a Ministry of Justice. Mercy cannot rob Justice.

Justice must be seen as the partner of Mercy, but it seems that Justice herself can be moved to pity only once. The song of Luthien moved Mandos to pity, who was never before so moved, nor ever will be again. For Christ also hath once suffered for sins.