Thought Experiment: Redesigning Justice.

An article and a comment have me thinking about the legal system, its fallacies, and what we can do to improve it.

First, in response to a post I wrote about my reaction to the life sentencing of Gary Ridgway, Aelfheld gently admonished me,

"I understand the impulse to inflict horrific pain on someone like Ridgway, but if we are to lay claim to being civilised in any sense we can't succumb to the urge.'

"I'm not saying that Ridgway and his ilk don't deserve to be maimed and tortured - they do. But we accomplish nothing by doing so except to degrade ourselves and diminish our claims to civilisation. The state, as the designated agent of the citizenry, must never act in a capricious or arbitrary manner; this is the reason for the elaborate machinery of the courts, not to protect the innocent, but to ensure that all of the rules are followed as impartially as possible.'

"For Ridgway, execution, public and non-clinical, would be the preferred solution; a public hanging is justice being done and being seen to be done. Incarceration is a sub-optimal solution, but any system formed and executed by man is inherently flawed; I don't have to like it (and I don't) but I do understand how it came about."

Very true. Aelfheld makes excellent points, especially in regard to the responsibility of the state, as agent of the citizenry, to avoid arbitrary or capricious action in regard to the law. Additionally, I believe that it is the responsibility of the citizens to shape the state accordingly; so that appropriate punishments are meted out for crimes committed.

Judging from the comment, Aelfheld and I agree, basically, that the death penalty is sometimes merited. In my opinion, I think Ridgway should be made to suffer as his victims and his families were made to suffer. Aelfheld asserts that the method I proposed in the heat of indignation is beneath a civilized society: if we were to kill him (and we won't--he's imprisoned for life; not consigned to death at the hand of the state), we should do it quickly. I respect that. In retrospect, I even agree.

What was hinted at, but not directly addressed in my post was restitution. I wrote that Ridgway should have been made to pay for his crimes with a slow, painful, and brutal death. (I've since rethought that. One slug, to the head, would be acceptable. Death by injection would be acceptable. But, I digress.) What I was thinking about when I wrote that were the families of the victims. I was empathizing with them, and thinking about what it would cost anyone who ever harmed my daughter.

Again, I was thinking about restitution.

It seems to be on many minds these days. Saddam Hussein's fate, especially, seems to be a matter of ferocious debate. Other legal proceedings: Ridgway's, John Allen Muhammed and Lee Boyd Malvo, Milosevic, and Richard Reid further feed the debate over just punishment.

Today, I ran across an opinion piece by Wendy McElroy on

Ms. McElroy and I are in agreement in terms of the following paragraph,

"For years, I've argued against the idea that categories of people commit crime -- e.g. "men" are rapists, "men" commit domestic violence, "whites" oppress minorities. Equally, I reject the idea that a category such as "society" can be a victim in any legally meaningful sense. Categories do not swing fists, rape, and murder: individuals do. Categories are not battered, violated, and killed: individuals are. The real victims deserve to be the focus of law."
(Of course, the emphasis is mine.--L.)

Ms. McElroy expounds on her position for victims' rights, positing that the taxpayer should be removed from the loop in terms of supporting convicted criminals. She holds that convicts should be made to work in order to provide for their room and board, as well as provide restitution to their victims, or their families. In the event of rapist, the rapist will pay for therapy, medical bills, and the cost of the emotional trauma. A murderer will provide for the family of the person they murdered, making sure that food is on the table, children are cared for, and that other costs, such as tuition, are met.

She also discusses the objections: directly addressing, as above, the crimes of rape and murder. She talks about the desire for vengeance, and repeat offenders. She also acknowledges the possibility of corruption in a restitution-based justice system, such as inmates who are made to work for too little compensation (thus never fulfilling their debt to the victim), or people who are unfairly jailed to feed a cheap-labor system.

She doesn't discuss the death penalty at all.

Now, I am the first to admit that I am no judicial scholar. American justice is just a subject that interests me. A healthy and fair justice system is the hallmark of a civilized society, ands so I like to keep an eye on ours.

This is where the point hangs: law scholars and laymen will argue, ad nauseum about what constitutes "healthy" and "fair" justice. Some people feel that the death penalty is never indicated, no matter what; some, like me, seem to feel that sometimes a perpetrator is just too dangerous to the people to be allowed to live. I'm thinking, specifically, of habitual rapists, pedophiles, and murderers. I'm also thinking of terrorists. I think people who have established a repetitive pattern of predation and human destruction should be removed from our midst with as much prejudice and vehemence as it takes to make sure that they stay in the ground.

In some ways, I'm with Ms. McElroy in terms of a restitution-based justice system. Let the perpetrator make it right with his or her victims, or their families. That way, the taxpayer is removed utterly from the system.

However, I don't entirely agree with all her points. Personally, I am willing to pay taxes that feed the sort of judicial system that provides thorough, fair, and equitable trials so that we can do the best we can, with all our human failings, to make sure that the innocent walk free. Once a perpetrator's guilt has been established beyond a reasonable doubt, they're on their own, though. Let one of two things happen: in what I term mortal offenses such as murder, or rape, kill the convict. They've established that the sanctity of human life, safety, and innocence menas nothing to them. Remove them from our midst with the same level of compassion they showed their victims. True, they cannot make monetary restitution at that point, but the world is nevertheless rendered a little safer. As a taxpayer, I would be willing to contribute to helping the victims or their families get the help they needed to heal.

Other offenses would be punishable with fitting restitution, as agreed-upon by the people through the vote (establishing our mores). The offender would support the victim or the family, and work to pay his or her own room and board. Once restitution was made in full, there would be a meeting of an arbiter, the court, the convict, and those receiving the compensation. The arbiter would help settle the question of whether or not the convict's debt to the victim has been met satisfactorily. If so, then they're freed to try and rebuild their life. If not, they work a little longer. More than two work extensions would become a matter of review by previously uninvolved arbitration and jurisprudents. This might help keep the system clean.

Although the preceeding proposal is mental meandering, and flawed, there is still no question that the current legal system needs review. Ultimately, the face that justice wears does rest in the hands of the people. We must decide upon what constitutes crime, and assign appropriate punishment to violations.

So, let's do a little experimentation and open up some dialog. If so inclined, sound off in the comments about what you think would make up a fair and balanced system of justice.

First, however, are a couple of rules: dissenting debate is welcomed, so long as it is courteous. Anyone who comes in with an attitude, casting or looking for flames, will be summarily ignored and deleted. Obvious trolls will be deleted. Be nice, respect others, and be welcome. Be a dick, and begone. That serves as your one fair warning.

posted by Linda on December 30, 2003 08:20 PM

I've always thought of the death penalty as a sadly necessary comment that we are sometimes incapable of otherwise safely removing the danger to society. In other words, the death penalty is not about the convict but is about society; given that certain people (think Ted Bundy) are not safely removed from society by incarceration, but are able to (for example) escape to kill again, society is best served by killing such people. Therefore, the imposition of the death penalty should be based on the "mad dog" theory, i.e. some criminals are safest put down for the safety of the people.

As for the rest of the justice system, I say that mandatory sentencing laws should go away, as the whole point of having judges and juries is to trust in them to make decisions on behalf of society, not to merely have them as executors of an imposed decision. We are theoretically trusting them to know the facts of the case, but not trusting them to sentence appropriately.

Posted by: B. Durbin at December 31, 2003 12:40 AM

The death penalty is not about justice! It is about adequate punishment! Some crimes are so bad that the only adequte punishment is to kill the crazy, no-good, fuckhead that committed it. And good riddance!! Die Fuckhead Die!

Posted by: The Bartender at December 31, 2003 08:13 PM

I completely agree Bartender, when a crime exceeds the level of psychotic or perverse to the level of pure evil, the bastard should be flogged through the streets, and then slowly hanged, as far as I'm concerned...

Posted by: john at August 30, 2004 04:09 AM