One more for the fellow night owls fighting for justice...

We have a naive idea of what "equality" is and it has some dangerous consequences. Pure vengence usually doesn't work.

Lady Justice’s blindfold and scale epitomize some of the core values of American culture, fairness and equality for all. However, in the effort to provide such unbiased justice, many people who pass through the criminal justice system receive the opposite. When considering equality, it is prudent to understand that not every criminal has the same motivations and reasons behind his/her behavior. Although blanket uniformity looks like the most just way to carry out sentencing when only the legal aspects of the case are contemplated, it is not so cut and dry when cases are considered more thoroughly. Giving the majority of the power to the legislators, who only look at the theoretical fundamentals of offenses, instead of the judges and prosecutors, who are in constant daily contact with offenders, is nonsensical. The legislature only needs to present in the sentencing process in terms of providing advisory guidelines for judges; the ultimate discretionary authority needs to be in the hands of those people who deal with crime on the case-level, mainly judges and attorneys.

Equal justice is a nice hypothetical idea: if you commit crime A, you get corresponding punishment A. It does not provide much room for disparity or discrimination and thus, it is the epitome of fairness; however, not taking the unique circumstances of specific cases into consideration during sentencing harms society as a whole when the same offenders continue to be sentenced yet not actually treated and because of this, they continue to recidivate. The more complex system of individual justice, which recognizes the many facets that influence offenders’ behaviors, allows for a more effective justice system – one that actually has a much better chance of putting a dent in the crime rate. It does not merely warehouse every person who might be a threat to the public; instead, it attempts to “fix” offenders so that they can be a productive part of society. The government, an entity that is not involved in the daily operations of the criminal justice system, forcing judges to abide by their ideas on the proper way to sentence should be rejected by the public and replaced by a system in which judges, the people who are closer to the immediate community, crime, and offenders, make the discretionary decisions. Even though legislators are the representatives of the people and their values, how often and how many people actively vote on criminal laws and statutes? Of those who do vote, how many are actually well educated on the issues for which they are casting their ballots? Does it make sense that the people who are the furthest removed from the criminal law should be the same people who make the most profound decisions for its livelihood? Or, does it make more sense that the members of the court system, who are intimately acquainted with the community, their regional views on crime, and the offenders themselves, make the decisions on how to prosecute and sentence individuals? Asking a public that is either not at all or very casually educated about the intricacies of the criminal justice system to help create the guidelines that judges are then forced to follow is just as sensible as asking the public what the best treatment for lung cancer would be, instead of asking an oncologist, perhaps. If the public doesn’t have that much say-so, then legislators, a very small group of people who are not representative of the overall population, are making very important decisions for people they are not really representing and that, might be more disturbing than the former. Putting diagnoses and sentencing into the hands of qualified professionals who are directly involved in a particular field is the only logical solution and that solution is individual justice.

Since there are a million different examples of how the same type of crime could be vastly different depending on its context, judges should consider legally relevant factors of specific cases prior to determining sentences. As Kevin Reitz put it, legislature is not able to define a “perfect matrix of laws to govern every particular of life” and because of this, they should not be able to set determinate sentencing rules (Reitz, 401). Without determinate sentencing statutes, judges have the freedom to sentence people in a way that is most appropriate to their unique circumstances. If an offender has a mental illness that could likely be contributing to his/her criminal behavior, a judge can sentence them to a psychiatric hospital instead of a jail that can lead to an exacerbation of the illness. If an offender is addicted to drugs, a judge can sentence them to treatment where medical professionals can monitor them. There are also other characteristics that need to be examined; such as, the number of charges, their nature (i.e., violent, was a weapon used, etc.), prior criminal record, current criminal status (have they violated probation?), gang affiliation, and possibly others based on the judge’s assessment. The offender, not just the crime, should be the focus of the sentencing, considering that without an offender, there would not be a crime. The current emphasis on restitution is austerely avenging a crime and the lack of offender focus has led to a cycle of recidivism. At the very least, allowing judges to assess an offender’s needs and sanctioning accordingly can have a positive effect on recidivism; at the very worst, the situation will remain as it is and no harm will be done.

An additional dilemma is that statutes like mandatory sentencing take away the discretionary influence of judges, who are elected or appointed based on their accomplishments and competence, and as an alternative, give most of it to prosecutors, who are some of the most inexperienced and unregulated players in the criminal justice system: “they are often at an early stage in their careers, their decisions are made behind closed doors and are neither explained on the record nor subject to review. Judges, by and large, are neutral to case outcomes, are selected for high levels of professional attainment, are required to work in open court and explain their decisions on the record, and can be second-guessed by their appellate colleagues” (Reitz, 403). Prosecutors, as Supreme Court Justice Jackson noted in 1940, “[have] more control over life, liberty, and reputation than any other person in America”; legislature does not need to compound that lofty prosecutorial control (Spohn, 63). It is irresponsible to permit prosecutors the absolute ability to circumvent legislative guidelines by choosing whether or not to charge an offender, what to charge them with, and whether or not to offer a plea bargain without ever having anyone review their decisions while judges have to abide by numerous restrictions on just one aspect of the process, sentencing – which is something that prosecutors can advise upon. As Reitz points out, “we should prefer a system in which judicial sentencing discretion is not subservient to prosecutorial discretion” (Reitz, 403). Given all of the avenues for abuse, it should be clear that the constraints need to be placed far more strictly on prosecutors and eased off of judges and, since legislators are not the best discretionary authority for the criminal justice system, their restraint on sentencing should be less prevalent overall. Legislators should however, address the common concern that case-level parties could sentence based on discriminatory factors if they are given room for discretion and there must be statutes to correct for that behavior.

As one of Reitz’s hypotheses state, “the considerations of visibility, professionalization, accountability, and systemic responsibility should be the relevant concerns” (Reitz, 403). In the judicial system, some of those checks and balances are already in place for certain parties. In view of the fact that cases are tried in public, a judge’s work is always on display and able to be scrutinized by the fellow court community and the civilians who pass through the system. Prosecutorial staff, on the other hand, conducts much of its business behind closed doors where it cannot be scrutinized. Since it is not possible for prosecutors to make the entirety of their work public, there should be at least one unbiased party present during all negotiations with offenders. They should be aware of the circumstances of the case and can report to an organization like the Attorney Registration and Disciplinary Commission (ARDC) in Illinois if they believe a prosecutor is abusing their power in any way. In addition to that, prosecutors should be required to write a brief review of their charging decisions, plea-bargaining, and so on. It may be inconvenient and more time-consuming but, considering the outstanding impact on human lives, it is a necessity. In all other aspects of a prosecutor’s work, organizations like the ARDC should continue to be present and more strongly enforce their guidelines for principled behavior. Those who work within the court system should be made well aware of their ethical responsibility to report (anonymously if they choose) any misconduct by attorneys, whether it be discrimination against an offender or coming to work intoxicated. Judges, who are already held to a higher standard than lawyers, should be accountable to a similar organization where both the public and the court community can report any problems that are guaranteed to be addressed by the organization as long as they have merit. If a judge is taking legally irrelevant factors into account when determining whether to sentence and how harshly to sentence, they will eventually form a pattern of behavior that can be addressed by the committee and then either fixed or punished. The legislature can strictly impose sanctions upon judges and lawyers who are found guilty by the committees for not upholding the law. If judges and lawyers know that the consequences for illegitimate behavior can be as high as losing their license or imprisonment, they are likely to hold themselves even more responsible than they currently do; and, those who do not abide by the rules will be penalized accordingly.

Using the above outlined system of individual justice gives the public the best of all worlds. Prosecutors will no longer be so powerful that they can do as they please in the pre-sentencing stage and judges will be able to impose individual sentences that are more applicable to the offenders needs and thus, are more likely to have a positive impact on the offender and the public.

Save the Criminals: Revisiting Bentham

Americans take pride in how just and fair the United States is in the treatment of its citizens, including those who are not considered upstanding by most; however, there is nothing just or fair about locking up masses of people for crimes that range widely in seriousness and harm then hoping that if they make it out of the prison system, the civilian population will be dealing with a stable and reformed contemporary. It is unreasonable to believe that the simplistic correctional approaches of incapacitation (lock them up, throw away that key), deterrence (if the punishment sounds scary enough, they’ll behave), and retribution (punish them because, well, they deserve it) have the ability to reform offenders – these correctional forms austerely return offenders to the public in a state that is either the same or worse than the one they were in when first entering the legal system. A far more beneficial approach, for both offenders and the general public is rehabilitation. Through treatment, the corrections system can reintroduce a less deviant member back into society who will be able to positively interact with others and contribute to the community by accepting and following the social norms that most people, who do not suffer from psychological, biological, or social irregularities, follow every day.

Rehabilitation, or treatment, is part of the utilitarianism punishment philosophy, which was introduced by Jeremy Bentham. Bentham argued that people do things for hedonic purposes: they weigh the balance between pleasure and pain, and typically choose the more pleasurable route. In terms of crime, a rational person would consider the potential benefits and consequences of committing an illegal act; if the sentencing system is set up properly, the consequence would outweigh the benefit of crime and therefore, the potential offender would be deterred. Unfortunately, the belief that people perform cost/benefit analyses in their heads prior to committing a crime is naïve. It is essential to acknowledge that not everyone does the “math” before every single action they take and therefore, there must also be criminals who fail to do so. Many lawbreakers commit offenses not because they are inherently evil and corrupt but due to mental deficiencies brought on by brain chemistry imbalances, drug and/or alcohol addictions, environmental and social problems, or a combination of these. In other words, criminal behavior is not always an exhibition of free will, or at least, not truly free will; a number of diverse factors that are unrelated to rational thought play a part in a person’s behavior. Rehabilitation attempts to counter these deficiencies by “restoring a convicted offender to a constructive place in society through some form of vocational or educational training or therapy” (Clear, Cole, & Reisig, 2006: 67). Rehabilitation is the only philosophical approach that incorporates both physical incapacitation of offenders and deterrence from future offending.

Due to its focus on fixing problem behaviors, instead of simply incapacitating, rehabilitation provides the most benefit for everyone that is affected by the criminal justice system; however, like all punishment forms, there is no perfect answer to the crime problem and rehabilitation has its downsides as well, which might explain its infrequent use in sentencing. At the initial stage of sentencing, rehabilitation poses problems for the judges who have to determine, with no concrete formula, who would be a good candidate for this approach and how they should be treated. The identification of crime causation, ideal candidates, and elite forms of treatment for specific offenders is impossible for judges to predict 100% of the time. Without distinct guidelines for care, issues concerning lack of fairness become apparent and treatment might be wasted on people who are unable to benefit from it. Most importantly, forced rehabilitation may be an infringement upon the inherent human rights of American citizens - those who do not want treatment should not be forced to accept it. For those who are willing to accept treatment, it is absolutely essential that they be afforded the opportunity to treat problems instead of being isolated from society through incapacitation until they are reintroduced with no real difference in behavior patterns.

As the American criminal justice system demonstrates daily, incapacitation simply does not work. A person who innately lacks the ability to follow social mores is more likely to come out of prison worse for the wear. Incapacitation takes someone who is, for whatever reason, unable to subscribe to society’s social norms and puts them in an even more abnormal environment so that when they return to society, they do so with less social and employment skills than they came in with. Although most facilities do offer some form of treatment while incarcerated, it is usually quite sub par. In particular, collective incapacitation, the mass incarceration of offenders who commit a certain crime without the consideration of prior records and personal characteristics, is highly ineffective as it treats offenders who are not equally culpable as if they were. Thus, people who are very likely to reoffend are getting too lenient of sentences and those who are unlikely to reoffend are wasting their lives in prisons. Like rehabilitation, it also requires judges to predict future behavior and then decide, by subjective means, how long a person must be locked up in order to not reoffend again. Punishing people through prediction for crimes they might commit is highly immoral. The high rate of “false positives” is especially disturbing when, as Tonry points out, “for every three persons predicted to commit serious violent offenses, only one will do so, and the other two will be ‘false positives’” (as quoted in Spohn, 2009:14). If the goal is to punish for possible future wrongs, then what draws the line at offenders – why not target people who have not offended yet but are likely to offend in the future? Overcrowding prisons and spending $40-50K on offenders who might reoffend is simply senseless and not fair to the public; this is especially true in cases of drug offenses where sentencing never reaches the root of the problem and instead incarcerates heaps of people who always have a replacement waiting to take over their post (Tonry, 2005).

Incarceration is supposed to deter crime by physically disabling people who would otherwise offend and by setting an example for the general public that there are real consequences for crime; however, the effectiveness of deterrence is debatable. General deterrence is intended to discourage the public from committing criminal acts by using previous offenders to demonstrate the consequences of criminality. Specific deterrence is simply the more narrow idea of punishing individuals to deter them from reoffending, something that can be achieved far better through actual treatment. It all seems logical in theory but it has significant flaws in its assumption of rationality. Deterrence theory assumes (often wrongfully) that people rationally contemplate their actions before committing offenses and thus, does not account for those exact offenders who would benefit from rehabilitation: people who commit offenses due to drug abuse, mental or psychological illness, or those involved in “heat of passion” crimes. Even when rational actors are to blame, the justice system does not use deterrence competently. At present, deterrence oriented sanctions are about raising the severity and length of punishment (i.e., truth in sentencing laws, three-strikes-law, mandatory minimums, and so on) whereas, according to Michael Tonry’s research, it is far more effective that punishment is certain and prompt rather than lengthy and severe. But, even if deterrence oriented punishment were to be certain, it can still fail because people do not expect to get caught when deciding on criminal activity and therefore, there is no need to worry about certainty. Additionally, the frequent use of plea-bargaining provides more certainty for lenience rather than fear of specific punishments. A study by Gottfredson showed that, "neither the type of sentence (confined vs. non-confined) nor the length of confinement affected the likelihood of recidivism" (as quoted by Spohn, 2009). He concluded that, "although incarceration may have served as a warning to others or as deserved punishment, it was not a more effective deterrent than noncustodial sentences" (Spohn, 2009:293). A study by Spohn and Holleran came up with an even stronger critique for deterrence: "contrary to deterrence theory, ... prisoners were 2.3 times more likely than probationers to be charged with a new offense, 1.8 times more likely than probationers to be convicted of a new offense, and 2.2 times more likely than probationers to be incarcerated for a new offense; offenders sentenced to prison also recidivated more quickly than those placed on probation" (Spohn, 2009: 292-293). The emphasis on incarceration is not necessarily reducing crime but may be contributing to its pervasiveness and frequency.

Despite their many cons, neither deterrence nor incapacitation is as useless and inhumane as retribution. Retribution’s primitive and vengeful purposes which support statements like the following, “justice demands that he [the offender] be punished … because and only because offenders deserve it” -- do not have a place in a civilized society (Spohn, 2009: 8). There is no inkling of future benefit to neither offender nor community in retribution; it is simply an attempt to appease people in the populace. It rests on the idea that everyone subscribes to a social contract, normally implicitly, and that tells them the right and wrong ways to behave; people who behave the “wrong” way have broken the contract and thus deserve to be punished. The social contract idea is great in theory but, as John Locke showed in his writings on the topic, once a society becomes large enough, we need a more structured way of dealing with people or, chaos will ensue. Criminal justice cannot focus on pleasing the vengeful desires of victims; if it did, the system would be operating on emotions instead of rationality – a scary thought considering the overwhelming power the legal system has to impose restrictions on the most vital right of humans, liberty. The only retributive idea that addresses justice is the one introduced by Cassia Spohn, which says that if an offender gains an unfair advantage over the law-abiding citizens through crime, they must be punished to balance the scales. However, balancing the scales is not concretely outlined anywhere so it is up to the courts to decide what is a fair balance, which is too particular to the judge’s personality or unpredictable mood.

The focus on the offender, not the offense, is the key to the superiority of rehabilitation over other sanction forms. Rehabilitation deals with the reform of the offender by providing “group counseling, education, job training, substance abuse treatment, and behavior modification programs” which, ultimately benefits the greater societal good (Spohn, 2009: 15). It can even incorporate deterrence and incapacitation but with a far greater end-result. The ability to commit crimes can be taken away from criminals who are sentenced to an in-patient type program; and at the same time, instead of further breaking down the inmates ability to relate to social norms that are not present because the offender’s upbringing or community, addiction to a substance that limits their mental capacities, or a chemical imbalance which prevents them from functioning at an ideal psychological state, rehabilitation can help reform them in a way that helps offenders more smoothly integrate back into the community. Corrections can help reduce the recidivism rate by incorporating “‘well-managed, well-targeted [rehabilitation] programs” which have been shown to reduce the probability of reoffending (Tonry, 2005).

The lack of rehabilitative sentences enforced by legislators makes little sense when it can easily be seen that of the four different forms of utilitarian (incapacitation, deterrence, and retribution) and non-utilitarian (rehabilitation) punishments, rehabilitation is the one that most fairly addresses proportionality, uniformity, and justice for both offenders and law-abiding citizens. By tackling the causes of crimes, rehabilitative sanctions can better structure reform based on the blameworthiness of the offender instead of merely punishing the offense. For example, it is not logically sound to punish someone with a mental handicap that gives them the reasoning ability of a teenager in the same way that one would punish a middle-aged man who is perfectly capable of making rational decisions. Although all four philosophies are fairly good at addressing uniformity, rehabilitation addresses it not only in the sense of punishing but also in determining how similar people with similar deficiencies can be “fixed”. It is not enough to give two equally blameworthy offenders an even amount of time in prison, it is more important to give them comparable treatments so that they will be able to return to society in a better state. Punishing for the sake of punishment brings justice to neither offender nor community; it is not just to throw someone into an overcrowded prison and never look back until their time expires and they can be sent into a society for which they are still a bad fit. Nobody benefits from the release of an offender who has just spent a period of time in a place that has likely made him or her angrier and more criminal than before arrival.

References

Clear, Todd, George Cole and Michael Reisig. American corrections. 7^th. Belmont, CA : Wadsworth Pub Co, 2006. Print.

Spohn, Cassia. How do judges decide? : the search for fairness and justice in punishment. 2^nd ed. Thousand Oaks, CA: Sage Publications, Inc, 2008. Print.

Tonry, Michael (2006). “Purposes and Functions of Sentencing,” Crime and Justice 34 (excerpt).

Osborne, Thomas Mott. "The True Foundation of Prison Reform." Journal of Correctional Education 46.2 (1995): 76-78. Academic Search Premier. EBSCO. Web. 14 Mar. 2011.