Editor’s Note: This is the first of a three-part series examining the U.S. criminal justice system.
By Dr. Gary L. Deel, Ph.D., J.D., Faculty Director, School of Business, American Military University
Unless you or someone you know has been convicted and sentenced under the United States criminal justice and penal system, you probably don’t spend a great deal of time thinking about the design or logic of the system. But if you allow yourself to ponder for just a moment how we attempt to deal with offenders, it’s hard to avoid the stunning realization that we have made some grave errors in how we handle crime and punishment.
Here’s a fundamental question: What is the purpose of the criminal justice and penal system?
One argument is that the system is designed to serve as a deterrent to crime by demonstrating the undesirable consequences of criminal behavior. This deterrent effect may or may not in fact play out in different circumstances, but it’s important to point out that its purpose is specifically aimed at society outside the walls of prison.
Another argument is that the penal system is designed to restore victims of crime from the harm they’ve suffered at the hands of offenders; this is often called “restorative justice.” And of course, restorative justice isn’t always possible, no matter how badly we want it to be. Sure, if someone is a victim of a theft, then a restorative remedy might require the thief to return the stolen items or repay the victim for their value. The thief might even justifiably be expected to pay more in compensation for loss of time, earnings, enjoyment, emotional distress, and so on.
But how do you restore victims of rape and other violent crime? How do you put a price on the harm done? And what about murder victims? You can’t restore the dead.
Our Criminal Justice System Is Generally Not Interested in Restorative Justice
The fact of the matter is that, even in cases where victim restoration might be possible in principle, our criminal justice system is generally not interested in this goal. This is evidenced first and foremost by the decision to file charges in the first place. Many people mistakenly believe that, if they are a victim of a crime, they can choose whether charges are filed against the perpetrator. Indeed, this happens often in domestic violence cases, where one partner will report an incident to law enforcement in the heat of a spat and later try to “walk back” his or her statements or decline to press charges. But victims don’t decide whether charges are filed. Prosecutors do. And, yes, prosecutors can consider the wishes of victims in making their decisions over charges, but they are in no way obligated to do so.
When prosecutors file charges against offenders and try them in court, the actions are always on behalf of society as a whole. This is why the criminal case dockets always read “State of X v. John Doe” and not “Victim v. John Doe.” The prosecutors aren’t representing the victims; They’re representing the community that has been wronged by the offender’s breaking of the law. And any outcomes sought by the state are generally not specifically aimed at compensating or restoring the victim. So if you are the victim of a theft, the prosecutor doesn’t care about getting your stolen effects back or repaying you for the loss. The prosecutor only cares about addressing the criminal wrong against society.
This is why parallel proceedings are permitted. This can occur when the victim of a crime files a civil suit against the offender while at the same time a criminal trial against the offender is also pending. Victims must do this if they seek monetary recovery or other restorative remedies from the perpetrator because they won’t get them from the criminal trial.
So restorative justice is a nice idea, but it often isn’t feasible. And even when it is, our criminal justice system generally isn’t interested in pursuing it.
But what about the purpose of the criminal justice and penal system for the convicted, those who have been sentenced for crimes they’ve committed? Whether or not the system restores victims or discourages others from committing crimes, it’s important to consider what purpose incarceration serves for people who have been convicted and are serving their sentences. There are two main schools of thought on this topic.
Retribution Demands Punishment for the Wrong Committed by the Offender
One is called retribution, or retributive justice. Retribution demands punishment for the wrong committed by the offender, as such, it is predicated on the idea that vengeance is productive. In other words, causing pain or misery to the offender is justified and somehow makes the situation better. The problem is it isn’t and it doesn’t.
Any mature adult with a minimal capacity for thoughtful inquiry knows this. As much as we might be tempted to seek revenge when we are wronged in order to “get even” and experience satisfaction from the offender sharing our pain, we know this is a petty emotion driven by childish motives. And even if we succeed, it won’t rectify the harm done by the original wrong.
Imagine someone murders one of your loved ones. You might understandably be enraged and you might impulsively want to see the killer either sentenced to life in prison or executed. You might even want to kill the murderer yourself, with your bare hands. But notice that neither of those outcomes, should they come to pass, would do anything to help you recover what you lost. They won’t bring back your loved one or mend the ache that the loss created. So punishment under this kind of pretext is just returning fire for fire’s sake. It may create the illusion of making you feel better temporarily, but we can also recognize that it is not a “high road” in terms of moral conviction.
But if punishment and vengeance are not appropriate aims for the criminal justice and penal system, what are? In the second part of this series, we’ll look at the alternative perspective: rehabilitation.
About the Author: Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others.