The United States criminal justice system appears to follow a retribution aimed model. Whether or not the sentences currently levied by state statutes are consistent with political theories concerning proportional punishment, standard responses for convicted criminal acts include, but not limited to, fines, prison sentences, and the death penalty. Even with other theorists arguing that the initial justification for the current criminal justice model stems from elsewhere, it is obvious that America’s model is punitive.
Often, critics argue such retributive system perpetuates crime as evidenced by multiple studies of data – there is overwhelming evidence that rehabilitation based systems are better are both decreasing crime recidivism and average crime overall (Raynor and Robinson). Yet such studies are concerned primarily with the utilitarian: ends based justifications regarding our criminal justice system. This is concerning to a significant degree, primarily because the concept of due process, as expressed by the constitution, creates a system that is aimed to provide the rights namely of the accused. Thus, if we were to base a criminal justice system on something outside of a rights based perspective, such system would be justified on logic completely unrelated to the original intentions of due process. However, constitutional debates aside, rehabilitation is the system often backed up by studies detailing crime rates when it comes to utilitarian criminal justice proponents.
Retribution, however, isn’t as scrutinized as it should be in terms of the rights of a criminal, and more broadly, the rights of a human. Additionally, retribution appears to have tacit approval in social culture which is at conflict with many other social attitudes over general conventions. Assume that Crime X resorted in Punishment Y. Punishment Y turns out to be 20 years in prison. For the United States criminal justice system, that seems to occur often. Now assume in a perfect court system, whenever someone committed Crime X, they always got the exact same punishment Y. Assume also that none of the cases of Crime X were a false conviction. From a basic standpoint, this sounds fair.
However, let’s say Crime X was stealing. 20 years for stealing isn’t completely devoid of our criminal justice system. But say out of the people who were convicted of stealing, there were three types. One group was made of educated, graduated individuals whom had a stable salary. Then some day they decided they wanted to steal and break the law and so they stole. A Second group was made of uneducated, young adults who grew up in a culture where robbery was glorified. To that group, robbery was identified culturally as ok. They partook in the same act of robbery. A Third group was made up of individuals whom were educated yet influenced by the same culture as the first group. Assume that this group of individuals often understood that stealing was bad, but one day they were angry and that emotion overcame them and they committed robbery.
If one was to choose from all three groups which group is most realistic, the most common answer would be the latter, and if not, the second group. This is primarily because the third group is neither an extreme nor a case of social disadvantage respectively speaking. From the standpoint of retribution, proportionality of a single punishment Y no longer seems to hold – each criminal took an intention to carry out the act differently. Granted, some retributionists would differ that retribution is a theory in which a criminal makes up for the crime they commit regardless of intention. This “hard-core” approach seems unrealistic, since most criminal justice systems take intention into account at some level. All of these arguments regarding intention have been key in the criticism of retribution.
However, retribution often lacks criticism in current social culture as to what happens after the crime. In the third group, it was chance that one day at one moment a group takes part in a robbery. After that moment, that intention and mental moment vanishes. Instead, it is the bodies of the robbers that take the blow through Punishment Y. In such way, the body, a consistent remaining part of the criminal’s being, is what is harmed opposed to the mental state that caused the crime. But that mental state is gone.
In analogy, the simplicity of this argument is expressed with the social attitude that “people can turn their lives around.” Social norms often inform high school dropouts that they could come back and receive a GED. Social norms often express that benevolent actors are not immune from criticism; a philanthropic donor isn’t justified in committing fraud even if the two economic practices balance out. In such way, social norms embrace the ability of an actor to morph and change.
What is utterly confusing thus about the criminal justice system is its ignorance of the fact that the consistent body of an agent never is the specific perpetrator of the crime. The body rather is the mechanism at which the crime is carried out. It is nothing different to the mechanism of a gun at which a bullet is shot, or a wrench used to break down a lock. The criminal justice system doesn’t punish those objects for a crime. And yet what causes the crime is the mental state. That mental state vanishes the moment after the crime occurs, and for many criminals, is expressed with a mental state of regret. It seems as if the logic of retribution is invalid with the context of proportional punishment because the leverage of that punishment is aimed at something inconsistent with the act of the crime. Some would suggest that the merits of such criminal justice theories are valid hypothetically, and rather that their execution in a fair practice is problematic. Yet if anything, fair retribution is purely unworkable, thereby questioning its role in public policy and the American punitive system as a whole. And moreover, the lack of criticism aimed at retribution is surprising given general cultural norms about constant opportunity.
Peter Raynor & Gwen Robinson, Professor & Senior Lecturer Criminal Justice, Swansea & Sheffield University, 2009, “Why Help Offenders? Arguments for Rehabilitation as a Penal Strategy,” European Journal of Probation, Vol. 1, No. 1, p. 12
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