15
Dec
08

What does it mean for justice to be served?

“Justice” is sort of like “fairness” — it’s a powerfully compelling concept, probably an evolved adaptation to some extent hard-wired into our emotions, which we can’t seem to define properly and which, when we try to apply it by legislative fiat and violent coercion, generally just ends up hurting people.  We all want it, but we all have different ideas of what it entails.  Just like “fairness”, I’m starting to get sick of hearing about “justice”.  At the same time, arguing about what “justice” — or “fairness” — means tends to generate the sort of thorny questions and dilemmas that lead one to learn something about oneself.

For example, have a look at this:

Ameneh Bahrami once enjoyed photography and mountain vistas. Her work for a medical equipment company gave her financial independence. Several men had asked for her hand in marriage, but the hazel-eyed electrical technician had refused them all. “I wanted to get married, but only to the man I really loved,” she said.

Four years ago, a spurned suitor poured a bucket of sulfuric acid over her head, leaving her blind and disfigured.

Late last month, an Iranian court ordered that five drops of the same chemical be placed in each of her attacker’s eyes, acceding to Bahrami’s demand that he be punished according to a principle in Islamic jurisprudence that allows a victim to seek retribution for a crime.

My first reaction was “She got a bucket of acid; he gets ten drops?  What’s just about that?”  (If you’re looking for an outrage fix, there’s plenty in the WaPo‘s article; for example, you might read the bit where Bahrami was hosed off in the parking lot by “a worker” rather than properly decontaminated and debrided by doctors.  Particularly galling is the bit where Bahrami’s attacker insists that he hasn’t done anything wrong.)

The marvelous thing about the internet is of course that opinions vary.

Dripping acid into someone’s eyes is not a “justice” system by any stretch. So while I’m glad this crime is being taken seriously and that the woman has had a chance to speak out against the man who attacked her, I am horrified that the punishment may be torture.

Women’s rights cannot be severed from human rights. Women’s rights at the expense of human rights are no rights at all.

The United States Bill of Rights (in the Eighth Amendment) provides protection against “cruel and unusual punishments”.  The Canadian Charter of Rights and Freedoms provides (less) protection (in Section 12) against “cruel and unusual treatment or punishment”.  The question, of course, becomes: “What constitutes cruel and unusual punishment”?

Three months in jail would probably be considered “cruel and unusual punishment” for jaywalking (though it beats a shit-kicking).  It would probably be considered absurdly light for rape or murder.  It might be considered appropriate for selling pot*.  I’m not so much trying to defend my knee-jerk reaction as morally justified, here, as I am trying to point out that what constitutes “unjust punishment” is somewhat ambiguous.

Wait, hang on: we’ve deviated slightly from the where that point began.  I started by talking about cruel and unusual punishment, and ended up equating that to unjust punishment.  With that in mind, it’s no longer obvious that justice — whatever it is — can’t be cruel.

When we bring up “an eye for an eye, a tooth for a tooth”, we tend to focus on the dismemberment implied by the axiom: if someone cuts off your hand, you’re justified in cutting off s/h/its hand.  The part that we miss is — in modern legal terms, at least — more metaphorical: it states that punishment should be proportional to the crime.  If you steal my iPod, I’m not justified in burning you alive; at most, I can insist that someone steals (er… confiscates) your iPod.  Maybe a judge is justified (there’s that root again) in demanding that you return my iPod and buy me another one — inflicting upon you the same net loss that you inflicted upon me.  This is a very personal sort of justice (if that is indeed what it is): what you’ve done to me, I can do to you.

This gets harder to implement with more abstract crimes.  If you get convicted of selling pot, how does the judge quantify the harm you’ve supposedly caused?  Does s/h/it insist that other people sell you as much pot as you’ve sold others?  If you sell pot to a chemo patient (who uses it to suppress nausea and maintain a healthy appetite) and to a self-absorbed teenager (who uses it to hide from reality and inadvertently wreck s/h/its career), do the two outcomes cancel each other out?

In trying to rectify this situation, we’ve come up with a system in which we try to map concrete, real-world harm onto a much more abstract system of prison, jail, parole, fines, and damages, spanning both criminal and civil courts.  The O.J. Simpson trial is destined to become the archetypical example of this upgefuckery, where Simpson was found not-guilty but nonetheless, somehow, liable.

Now — riffing off the Feministe post — we’re not even really talking about “justice” any more — we’re talking about a “justice system” (excess scare-quotes elided).  And from a legislative perspective, that’s where the rubber hits the road.

What we’re trying to do with our justice system remains somewhat obscure.  I can think of five things off the top of my head that the justice system is trying — or supposed to be trying — to accomplish:

  1. Punish wrongdoers.  You fuck with us, we’ll fuck with you back.
  2. Deter prospective criminals.  This is distinct from 1. in that the punishments inflicted are no longer directed at those who’ve done, they’re directed at those who might do.
  3. Warehouse criminals.  We might not want to hurt you for the sake of vengeance, but we don’t want you walking free around our nice little society any more.
  4. Rehabilitate.  The idea is not to punish or sequester criminals, nor to deter others from committing crimes, but to turn criminals into people who won’t commit crimes.
  5. Satisfy the rest of society.  If justice — whatever it is — is indeed an emotional compulsion, then maybe the justice system we have is simply geared towards giving emotional satisfaction to the victim (and the rest of “civilized” society).  No-one’s likely to tell you that they support the death penalty (for example) because it makes them feel good; they’ll probably start by talking about deterrence or punishment.

If you’ve been paying attention, you’ve probably guessed that my answer lands firmly upon “5.”.  I’m not convinced that I’m just being cynical** about the whole thing, either; there’s reason to believe that everything from 1. through 4. works — kind of, a little, sometimes, but not always.  We’re constantly barraged with news about heinous and outlandish crimes (see for example “O.J. Simpson”, above), but not necessarily because crime’s increasing — more because media coverage is increasing, and reporting new and ever more execrable violations of human dignity is good business for the newsies.  Maybe a “justice system” that’s geared toward satisfying people’s emotional senses of justice really does do the most good, in aggregate, for the most people.

But of course such a justice system would abrogate the rights of the individual, and take with it the underpinnings of any reasonable moral code.  At this point, when we dispense with the icky details of the perpetrator and the victim and restrict ourselves to more comfortable abstract notions, we’ve built a system where actual harm — chemical burns, for example — is subordinated to the intellectual and emotional comfort of larger society.  Justice — as it applies to the individuals involved and the harm derived from their actions — becomes less of a concern than the perception of justice by the uninvolved, and becomes more and more… well, unjustifiably coercive.

In my opinion — worth what you paid for it — Ms. Bahrani had every right to kill her attacker in self-defence when he assaulted her in 2004.  But now?  I don’t know.  (I don’t have an answer, but I surely do respect the question.)

My opinion — and yours, and most everyone else’s — doesn’t matter nearly as much as we’d like to think.

——

* I find it absurd that pot’s illegal while alcohol and tobacco aren’t, but as of yet no-one’s asked me to vet Canada’s drug laws

** I am, mostly


9 Responses to “What does it mean for justice to be served?”


  1. December 15, 2008 at 03:36

    Actually, count me in for all five. There is a certain amount of justice in making sure the victim feels justice was served- it’s rehabilitative for the victim which is part of the societal good of a justice system and part of the compensation for the wrong committed. The sense that right is rewarded and wrong is punished gives credence to the whole system of society.

    As far as deterrence of this relatively common (in Islamic society) crime, serious punishment is needed to counter literally decades of societal acceptance. Throwing acid on women for a variety of excuses got to a cultural tipping point some while back and is going to take a serious counter-balance to reverse.

    The “cruel and unusual” punishments clause is meant to prevent vengeance from getting out of hand. Additionally, there is some slight echo of Christian theology in there, as in; “Vengeance is mine, sayeth the Lord”. (Not something I buy into as a non-Christian, btw.) There’s certainly a societal good in that as well. Limits to to peripheral damage and never-ending escalation caused by vengeance is one nice benefit of a ‘third party’ justice system over feuding and tribal warfare.

    Cruel… there are varying levels of what people consider cruel, many American teens would draw that line at not getting to borrow the car keys, and most liberals haven’t proceeded far beyond that egocentric point of view in their notions of societal good and justice. I would put the notion of cruelty at excessive (i.e. “more than needed to achieve the goal”) pain. Cruelty is when one inflicts pain because first, one has the ability, and second- it is fun and you enjoy it, rather than administering punishment according to a sense of what is right and fitting.

    So we come to the question of what is necessary to achieve our goal(s). We want to meet the 5 aims you listed (and #5, at least to me, icludes rehabilitating the stress and trauma upon the victim and the damage inflicted upon society by the criminal’s actions and the loss of trust in the system thereby engendered). What takes us to the point of achieving those aims and no further? Unfortunately, some subjectivity will always be involved.

  2. December 15, 2008 at 14:15

    There is a certain amount of justice in making sure the victim feels justice was served- it’s rehabilitative for the victim which is part of the societal good of a justice system and part of the compensation for the wrong committed. [...] and #5, at least to me, icludes rehabilitating the stress and trauma upon the victim[...]

    I wrote 5. after reading some of the commentary linked from Memeorandum (now apparently lost in the shifting sands of Web 2.0). What I got from that stuff was that most people who favoured the punishment found it emotionally satisfying for themselves, and most people who opposed it found it emotionally repugnant to themselves. Helping the victim recover from an assault almost never comes up in a theoretical discussion of justice, but my main point (if I had one) in the above is that it should be the first priority.

    I don’t think we disagree here; I’m just trying to clarify what I first wrote.

    The sense that right is rewarded and wrong is punished gives credence to the whole system of society.

    Agreed. We wouldn’t reap the benefits of specialized labour if we didn’t trust contract law, for example.

    Since we differ quite a bit in how we interpret 5., I’m going to split it up. (And I’m aware that I’m probably building a straw-man, and possibly also an excluded-middle fallacy.)

    5a. Restore, to some degree, the victim’s and the rest of society’s confidence in the justice system, the social contract, and so on — in the context of a specific crime.

    5b. Satisfy the abstract emotional desires of society (or a majority or loud minority of society) outside the context of a specific crime.

    5b is what I was complaining about (“abrogate the rights of the individual” and all that). This is where, for instance, we end up with powerfully emotionally compelling statutory-rape laws that end up convicting sixteen-year-olds for going down on their (fifteen-year-old) girlfriends and mark them as sex offenders for life. Great idea in the abstract, unjust when applied to a specific individual case.

    We want to meet the 5 aims you listed[...].

    Yes, and that’s half the problem: I don’t think they’re mutually compatible. Punishment and deterrence are probably compatible; punishment and rehabilitation, though?

    I don’t have an answer, but I do admire the problem.

  3. December 15, 2008 at 15:14

    Funny that you should post this on Bill of Rights day.

    The law is a big, inaccurate blunt object (pardon me). And a fundamental problem, particularly in US justice is delay. I have no problems executing the Lundgrens (Kirtland, Ohio killers of a family). I object that it took 20 years to do so. I worry about the inequities of executing poor folks and not rich folks. I worry about the inconsistensies, like the statuatory rape laws that you mentioned.

    Execution can be swift, painless, and palatable. Pick any two.

  4. December 16, 2008 at 01:14

    “Yes, and that’s half the problem: I don’t think they’re mutually compatible. Punishment and deterrence are probably compatible; punishment and rehabilitation, though?”

    Puyt it more clinically and it seems more clear: negative reinforcement and rehabilitation are absolutely compatible.

  5. December 16, 2008 at 01:18

    Pardon; that should have been positive reinforcement through punishment.

  6. 6 Geoffrey
    December 17, 2008 at 00:14

    In my very first criminology class, my professor stated that prisons could either punish or rehabilitate, they could not do both. I’ve yet to find an argument to refute that assertion that stands up to my scrutiny. I believe justice in the practical, codified societal sense falls under much the same restrictions. You have to decide what the priority is and anything else outside of that will suffer.

  7. December 18, 2008 at 03:17

    “In my very first criminology class, my professor stated that prisons could either punish or rehabilitate, they could not do both. I’ve yet to find an argument to refute that assertion that stands up to my scrutiny.”

    I’ve yet to see an argument for that assertion that makes me believe this. If positive reinforcement through negative stimulus is not punishment, I don’t know what is. Whether it is applied through conscious agency or is merely a hot stove. It’s also the strongest force known to man in terms of behaviour modification.

    Can it be wrongly incentivised to result in failure of public policy? Certainly- probably more often than not, because most of the things we want to punish people for have their own incentives and we evaluate things such as drug use based on superstition and emotional arguments rather than rational, empirical economic and ethical arguments based upon the rights-oreiented view of the individual.

  8. December 18, 2008 at 03:18

    What I mean to say by the last is that both punishment and coercive behaviour modification should be used very sparingly.

  9. December 18, 2008 at 13:53

    I’m willing to accept the idea of rehabilitation through negative stimulus, but I’m still not convinced that the methods are compatible. From what I understand, negative stimulus in conditioning needs to be directly associated with the undesired behaviour (not applied much later, as a jail sentence would be), and should be — not quite sure how to phrase this — “minimally harsh”. A useful “rehab-conditioning” punishment might be too lenient to give the victim any emotional restitution. (On the other hand, if every time a goblin tried to mug someone his intended victim pulled a gun, that goblin would probably get the message that mugging people isn’t nice. Read “pulled a gun” as a generic but convincing threat display; I’m not fixated on any one tool.)

    A lot of my opinion is based on stuff I’ve read by Marc MacYoung on different kinds of violence. He explicitly separates “behaviour-correcting” and “punishment” violence, which is probably why I do too. Here’s an example:

    Violence: Behavioral Correction


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