Making Things Whole Again

     One alternative form of justice offered up in recent years is deemed restorative justice. In broad terms, restorative justice techniques focus on a dialogue between the victim, offender, and members of the community about the crime that has occurred, the type of harm done, how it has affected each of the participants, and the ways that the harm can be healed going forward. Often, these processes are facilitated by a kind of mediator who ensures that each person has a chance to express their feelings and be heard by all the stakeholders in a crime. In this way, the ultimate goal of restorative justice would be for the offender to recognize the harm he has caused, make reparations to heal the harm done, and make steps to assure others that the crime will not occur again. Ideally, the victim of the crime will be satisfied with the reparations and, if possible, forgive the offender. The community members will also feel satisfied with the resolution and be able to welcome the offender back into the community after he has made a sincere effort to make things right again.

      Hypothetically, there are quite a few advantages to restorative justice over more punitive forms of justice. One is that the victim of a crime, arguably the biggest stakeholder in the event, has a forum in which to be heard and understood. In our current criminal justice system, victims are often peripheral to the process: if they do have an opportunity to be heard in a court room, it is normally just to testify regarding the facts of the case, not to be able to work through how the crime has harmed them. In this way, the restorative justice process should ideally give more closure and emotional satisfaction to the person who is harmed most by a crime. Further, most of the people who commit criminal acts are not the hard-hearted sociopaths that lack any sort of empathy. Instead, they often rationalize with ideas such as the victim deserved it, can afford it, and so forth. By giving the victim of a crime the chance to be heard by the offender, the offender should ideally come to see the seriousness of their actions and the humanity of their victim.

      Another advantage is that by opening up a dialogue about the events, rather than attempting to establish blameworthiness through traditional court processes, the restorative justice process leaves open the door for the offender to be reintegrated and accepted back into the community. By giving the offender a chance to voice his own experiences, the restorative justice processes seek to understand what may have driven someone to commit such a crime and increase understanding between members of the community. This is not to say that participants should seek to find mitigating circumstances that pardon the offender from any blameworthiness. The actions of the offender should be condemned and participants should seek for the offender to take responsibility for them. However, instead of the offender being seen as a morally-blameworthy person deserving of punishment, participants in restorative justice processes should seek to condemn the actions but understand the person behind them. This is akin to the biblical message of 'hate the sin but love the sinner.'

     The community aspect of restorative justice is important as well--instead of the more broad, nebulous figure of the state being involved in punishment of the offender, the community should seek to understand why someone among them would act in a way to harm their own community and should seek to find ways to reintegrate and accept the person back into their group. This ideally cuts down the sharp, antagonistic divisions between offender and offended, and instead emphasizes interconnectivity and unity. This emphasis lessens feelings of resentment between punisher and punished and should decrease the chances that the offender becomes stigmatized and excluded from society, which in turns decreases the chances of reoffending.

     Despite its hypothetical advantages, restorative justice is not without its problems. On a practical level, restorative justice processes can typically only take place when an offender has admitted his guilt. If the person who has committed the crime has not shown any willingness to take responsibility for the crime, restorative justice processes are essentially ineffective. Further, making the offender's punishment subject to the wishes of their victim has the possibility of becoming even more punitive than a third party, impartial judge. Because of the emotional trauma often involved in a crime, it can be difficult for the victim of the crime to think rationally or avoid vindictiveness. Some speculate that this is the reason why the eye-for-an-eye rule was instituted--to ensure proportional response to crimes, rather than blood feuds in which families were slaughtered wholesale due to the actions of one of their members. In fact, it might be almost offensive to believe that victims of certain crimes could come to forgive and accept a person that has wronged them. However, it is the facilitator and community members' jobs to ensure that the reparations made by the offender are indeed proportional and do not devolve into the type of punitive consequences that restorative justice seeks to avoid. Further, I think that the role of restorative justice processes for the victim should be seen as a way for the victim to work through their trauma emotionally and ensure that the victim is heard. Forgiveness and compassion are eventually ideal, but certainly not required. General statistical findings indicate that victims of crimes are typically more satisfied with restorative processes, but this could be a reflection of the type of people that choose to be involved in such programs.

     Further, communities themselves are not immune to the types of hierarchical power relationships that restorative justice seeks to avoid. Wealthier or more politically powerful members of a community are not likely to face the same type of dialogue that someone lower on the socio-economic rung would face. Communities also often define themselves by what they are not, as opposed to what they are. When an offender is seen as residing outside the community, it can be difficult for restorative justice processes to attain the goals they seek to achieve.

     Additionally, many restorative justice processes rely on instilling shame in the offender so as to inspire him or her to take responsibility for his actions and wish to make reparations. Shame itself is not necessarily an overly punitive tool--shame is a social feeling that can remind us that what we have done is out of line with even our own standards. However, if used excessively or in a way that makes the offender feel as though he is not able to reintegrate into the community, restorative justice techniques can be just as punitive and antagonistic as the forms of justice it seeks to correct. And though it poses itself as an alternative to more punitive forms of justice, it still relies on the distinctions between offender and victim, right and wrong, legal and illegal that underlie our current system of justice. If restorative justice truly seeks to be an alternative to our current system instead of carving out a niche within it, it must seek to engage more radical questioning of divisions between guilt and innocence, legal and illegal, punishment and treatment.

    This leaves us with perhaps the greatest problem with restorative justice: how can one restore that which cannot be restored? Crimes like theft, property damage, and so forth are much easier to repair. But what of crimes like murder and rape? Because of the types of harm these do and the types of emotional trauma involved, restorative justice does not seem appropriate. When someone has been raped, it would seem near impossible to ever restore what has happened or forgive the person that has done that. But to me, creating more ugliness from such a situation is one of the worst possible things to do. Punitive justice systems have, for centuries, sought to ways to justify and explain why two wrongs make a right. One of the first moral lessons that many of us learn growing up is that this is in fact not the case: that striking someone back creates two black eyes out of one. Creating deeper wounds merely adds scars. Giving into feelings of anger and vengeance only leads to bitterness and resentment.

     In this way, despite it's many flaws and problems, I find restorative justice more appealing because it is dialogue-based in nature. It takes an event in which harm is done and it seeks to create understanding and connectedness between all parties. Instead of condemnation, it offers avenues for redemption. The messages of restorative justice are of the 'we' variety, not the 'you and I'. Instead of further shattering lives that are already very apparently broken, restorative processes seek to create something better, something more whole. Can we, as a society, learn the same lesson we did when we were children, that harming someone in response to the harm they visited on us makes us worse, not better.

As a wise man once said, "We must learn to live together as brothers, or perish together as fools."

Prisoner; Criminal

     Think of a criminal. Create a mental picture of someone you think who is locked in a prison right now. Chances are, you imagined someone who is not white, has tattoos, might be a little stockier than average, and is probably quite a menacing figure. Statistically speaking, this might be a good guess considering that Blacks and Hispanics are incarcerated at a much higher rate, making up roughly 60% of the prison population while only making up about 25% of the US population.  

     In any case, this is the standard conception of the criminal. After all, when you imagine someone committing a crime, it generally isn't a white woman wearing khaki pants and a blazer. In all likelihood, when you picture a thief or a murderer, it's a poor, ethnic male who probably looks out of place in white suburbia or higher SES neighborhoods. This is the common meme in our society and its one that perpetuates the idea of necessity being "tough on crime". This is an easy position for political figures to take, considering no one particularly cares for crime, but the underbelly of this message is that being tough on crime involves transforming the "rabble" into people who are inoffensive to the rest of society (i.e. inoffensive to those with actual political power). 

     Even if this were not an incredibly flawed notion, would sending these people to prison be the best way to achieve real reform? Consider what happens when someone has a criminal record. They are shamed in courts. They are put in prison to which is attached to great social stigma. Convicted felons have an infinitely harder time finding a job that would afford them a living wage. Job and college applications have spaces where one must disclose any crimes or infractions one has previously been convicted of. Felons have their voting and many other civil rights stripped from them. And all this serves to do is take someone who was in all likelihood living in unfortunate circumstances and place them in even worse ones. As George Bernard Shaw writes in The Crime of Imprisonment, "Evidently your deterrence does not deter. What it does do is torment the swindler for years, and then throw him back upon society, a worse man in every respect, with no other employment open to him except that of fresh swindling." 

    Many of the prisons in northern Europe have begun to operate by the principle of approximation--the idea that life within penal institutions should resemble life in the outside world as closely as possible. They also take precautions to protect people from public shaming and other forms of degradation that are typically associated with incarceration in America. I have witnessed reactions of surprise to outright dismay at some of the images of Norwegian prisons that are more akin to a vacation cottage than the highly rigid and secure penal institutions of the United States. How could they allow people who have done wrong to experience such lavish lifestyles, these people seem to ask. They don't deserve that kind of treatment. And yet, with a recidivism rate of less than 30%, it's difficult to argue with the results of these types of programs. When someone who commits a crime is dehumanized and stigmatized, what reasons do they have to try and participate in a society that has clearly shunned them?

     Let's think back to the type of people more likely to end up in prison. Minorities are much more likely to end up in prisons than their white counterparts, even for similar crimes. I suspect many of the people who read this blog, at the very least, know someone (quote/unquote) who has, at one point in their life, smoked marijuana. The punishment for misdemeanor possession of marijuana in Tennessee can be a sentence of up to a year in prison. And yet, the person with economic power is much more likely to receive a fine or a light slap on the wrist than someone from a poor ethnic neighborhood. Even if both are arrested and charged, the person with economic power is more likely to be able to navigate the legal system in that they are going to be able to pay for bail, hire a lawyer, and pay any fines levied on them. The poor person does not have these luxuries and is thus infinitely more likely to end up in jail for an identical crime. And like that, the prison becomes a home for someone who has lost what little they already had. After doing his time, he is released into a world that is distrustful and disdaining of him. Perhaps he has lost his home during his time in prison and is now subject to being convicted of crimes like vagrancy and loitering. He returns to jail. Thus, the cycle of imprisonment begins for a person who did nothing we don't expect from thousands of college kids on any given day. 

    In this way, the prison has a vested interest in not reforming its prisoners, as the longer and more frequently they can fill their cells, the more economic power they wield. When private prisons hold contracts with the government that assure them at least a 90% occupation rate over 10 years, there is no reason for the jailers to make any real attempt to reform the prisoners in any authentic way. Thus the prison becomes like the bureaucracy, expanding and creating reasons to justify its own existence. The poor and socially-offensive are permanently branded as criminals so as to justify their forced segregation from the rest of society. Punitive measures in the name of reform become nothing more than social politics and exercises in discipline and conformity.

     

      

Thoughts on the Zimmerman verdict

     Though a few days late, I thought I would put into words some of the things I've been thinking about the Zimmerman verdict from the perspective of having done research on justice for the past 6 weeks. Here it is:

Based on the evidence, I don't think that Zimmerman is guilty of murder in legal terms. Do I think one could make the case that he committed manslaughter? Probably. I also think that if Trayvon Martin had been a white teenager, he would probably be alive today. If George Zimmerman had been black, I have a very hard time believing he would not have been convicted. 

     Was justice done?

     I'm not particularly inclined to think so, but I don't think that convicting Zimmerman of murder and sending him to jail would have done much more, if anything, to serve justice. At the end of the day, a 17-year-old kid was shot and killed and regardless of the jury's ruling, and Zimmerman will be a condemned man in the public eye for the rest of his entire life. 

     So what do I think would be just? I think it would be just for there to be public recognition, by the state and/or Zimmerman himself, that what Zimmerman did was wrong - that his racial profiling and vigilantism created a threatening situation in which violence was ultimately used. Had Zimmerman decided to go home instead of pursuing Martin, the death of a teenager might have been avoided. But I believe that visiting harm and punitive punishment against Zimmerman--via legal means or extralegal ones--won't restore anything that has been lost. Were this event to be used as a catalyst to spark an open and honest dialogue about race in America, were it to help us to reach out and try and understand one another, that would come far closer to restorative justice. 

     I can also understand the pain and outrage from a community that historically and presently faces unequal treatment under the law. We can imagine the kinds of message this verdict sends to our black communities across the United States. The exoneration of Zimmerman implies that it's okay to follow and harass black teenagers if one thinks that they might be 'up to no good'. In a lot of ways, it validates the stereotype of the African-American male criminal. It implies that blacks are inherently dangerous and not worthy of our compassion or care. And in light of the many injustices and imbalances that poor African-American communities face under the legal system every day, the ruling of this case, legally correct or not, seems to rub salt further into the wound.

     One of the most abhorrent things I found about this case was the media's portrayal and following of it. The outrage stirred up and incited by imbalanced reporting and selective editing of the 911 calls never fully dissipated, even after evidence was released that indicated that Martin attacked Zimmerman. The case was politicized, was drawn among racial lines. Hoodies and skittles became memes. During the trial, news programs treated it as though it were some sort of reality show contest. The sensational coverage utilized by the media nearly ensured that no kind of restorative resolution could come from the case.

    How many other people, regardless of race, were killed that night? How many other people faced unjust court rulings? If you care about the quality of justice done in the Martin case, I ask you to also care for the application of justice in many other unfair ways across this country. If you believe in the validity of stand your ground laws, then I ask you to believe that they apply regardless of the skin color of the assailant or the victim. If you are outraged at the injustice of the murder of a young teenager, I ask you to be outraged by violence committed by anyone in our communities, from abusive spouses to prison administrators, from gang members to overzealous police forces. 

      In the end, no matter what the court ruling, a seventeen year old kid is dead and another one of our citizens faces social death. Justice does not come from reopening and recreating the wounds and pain caused by violence. It does not come from reinforcing the segmentation of us versus them. Can we imagine that the legacy of Trayvon Martin could be something other than a national split over whether or not justice was served? Could it become something more than another youth falling victim to gun violence? Is there some way in which we could be made better from this, rather succumbing to temptations of vengeance and vigilantism that was at root of Zimmerman's own actions?

     For me, justice comes in the form of picking up the pieces of a tragedy and making them into something more whole, something more beautiful.

Behind the Bars

     The prison has, for a long time now, been the bread and butter of American institutional justice. In fact, the United States apparently believes in the efficacy of the prison so much so that, despite the fact that it holds 5% of the world's total population, it holds around 25% of the world's prison population. This is despite the fact that crime rates overall (especially violent ones) have been on a steady decline for the past few decades. In this post, it is my intention to examine some of the ways that the prison functions both as a part of our society as well as a micro-society of its own.

     As Michel Foucault notes, the prison's widespread use was largely born from a desire to punish more humanely. In the era leading up to the 19th century, bodily harm was typically visited upon the criminal. Foucault's Discipline and Punish begins with a graphic description of the criminal's flesh being torn from his body with hot metal pincers before his body is burned. The stock and pillory were common punishments for criminal offenders as well, made to endure extreme discomfort and public shaming. In this way, the punishments were an extreme deterrent for those thinking of criminal acts: See what happens when you commit a crime?

     The prison in present day functions almost in a completely opposite manner. The prison is a place to which undesirable elements are removed and kept separate from society until they can reform. The prison is a place that we don't have to think about consciously. We can be assured that the necessary processes are taking place for the reform of these prisoners, but those who are deemed to have traits incompatible with a smoothly functioning society are kept out of public view, and thus, largely out of public consciousness. This is not to say that the prison doesn't still function as a deterrent measure of justice: we are assured that prison is a horrible place by media that suggests rampant gang rape ('Don't drop the soap!'), daily stabbings and riots, and characters of pitiless evil that reside within the prison walls.

     And yet, how many of us have actually seen the inside of the prison? Viewed the daily inner-workings? Talked to the men and women it houses? In essence, the prison does not solely functions as a way to keep criminals separate from society. Its walls, rigid segmentation, and systems of surveillance also serve to prevent public oversight and interaction with those within the prison. The prison keeps criminals inside and society outside. This both deepens the distinction between the guilty and the innocent (as if they were separate sub-categories of humans) and places the prisoners largely at the mercy of their custodians.

     The guards, wardens, and other staff of the prison are either employees of the state or, in the case of private prisons, are contracted by the state. This means that the order, discipline, and violence visited upon the prisoners can be readily viewed as state-sanctioned. The violations of privacy, rigid disciplinary provisions, and mandatory cavity searches all become state-sanctioned actions under which the prisoner is held under the overwhelming power of the state. The division between the prison and society further places the prisoner in a situation where society's silence over his condition further sanctions the violence visited on him or her. The prisoner is denied private dominion over something so basic and taken for granted as the body. It should be no surprise to us, then, that many forms of resistance used by prisoners are those that are bodily in some way. The weaponization of bodiy fluids is a manner of using the only resources left to the prisoner. Hunger strikes and self-mutiliation are the ultimate demonstration of authority over one's body: that one is so in control of their body that one is willing to sacrifice the flesh. Steve McQueen's film Hunger is an excellent portrayal of such a struggle by imprisoned members of the IRA in the UK.

    And what choice does the prisoner have but to find modes of resistance? As Albert Camus said, "nothing is more despicable than respect based upon fear." If prisoners are placed at the bottom of a power dynamic by which their lives and liberty are fully in the hands of the state, what can they do but to try and reclaim some power. In fact, is this not something that we can all relate to? It is not just the prisoner who is at the mercy of the state. It is not so hard to imagine ourselves in a position under which our own fates could be decided at the hands of a judge and jury. Many of us have likely committed crimes that, under the law, jail time could have been served (from speeding tickets, to underage consumption, to petty theft). And yet, it is generally only the poorest among us who are convicted and separated from society.

    I expect that one counter-argument to these ideas is the notion that those who have committed a crime have forfeited their rights as a citizen. This is a common mode of thinking and is reflected in practices of society like denying felons voting rights, cutting funding for prison outreach organizations that promote education, reform, and vocational training, and so forth. It seems hard for us to imagine helping someone who has committed murders or stolen large sums of money and property or have otherwise visited very legitimate harm on others. As one attendee of a public philosophy lecture put it: why should I care about the health care of violent criminals when I myself struggle to afford health insurance?

    To me, this reflects an important point: that the division between guilty and innocent is not so distinctive as we might wish to believe. We cannot trust the labels between the two to do the work upon which society is founded. It's not difficult to imagine that had we been raised in an environment and subject to the same conditions as these prisoners that we might have gone down the same path. Can we come to view these people not as undeserving of our help, but those who need it the most? Perhaps a rising tide can indeed lift all boats.

     I want to conclude with an anecdote from the John Irwin's Lifers, a book that features interviews with California prisoners who are incarcerated under indeterminate sentencing. One lifer had gotten two of his adolescent children involved in outreach groups that worked with the prison in hopes of preventing poor youth from committing crime. The group, called SQUIRES, had been a very positive force in each one of their lives. It came time for the father's parole hearing for which he was extremely hopeful. The parole board came back with an extension of his sentence and within two weeks, both of his boys had been arrested for separate crimes. Today, both boys, now adult men, are in jail along with their father.

   When we tear away family members and support networks from the communities that need it most, we doom those forgotten members of society into hopeless cycles of incarceration, criminality, and desperation.

God and Justice (part II)

     Because of the short week due to the holiday, I spent the past few days revisiting much of what I'd written about last week. I also sat down with Alan Bancroft, the Vanderbilt campus Presbyterian minister to discuss some of what I had written about last week.

     Generally, it's difficult to assume certain things about the religious viewpoint, as religious viewpoints even within certain religions are varied and nuanced. As Bancroft pointed out, it's possible to read biblical scripture in a way that doesn't attribute the three O's (Omnipotence, Omniscience, Omnipresence) to God, even though that's one of conceptions of God that is maybe most widely agreed upon. So while one person in one faith might say that God grants all of humanity grace and thus criminal justice on earth is solely what is necessary for society to function, another reading the same scripture might determine that we have a duty to dole out God's justice because it is the morally correct thing to do. In so far as religion relates to punishment in this way, it's hard to reconcile 'God's justice' with human justice if we can't agree on exactly what God's justice is. For example, one opinion I read was that God's justice was bringing the widow, the orphan, and the poor into society and recognizing them as one of our own. St. Anselm, on the other hand, believed Jesus essentially served a tool for satisfying God's honor and retributive nature. In any case, it's difficult to exactly say how any conception of a heavenly law and earthly law are really intertwined. This is why we see bible verses held up on both sides of the street when people gather outside a prison for an execution.

     Ultimately, my feeling is that people like to think of God as both a harsh judge and a forgiving grace-giver simultaneously because it guarantees a certain outcome: that the people who have done wrong by us, no matter how fruitful and prosperous their present life, will eventually get what's coming to them while God will recognize that any bad actions that we have personally done are forgivable and not done out of malice. In a sense, it's the religious version of the Fundamental Attribution Error.

     The link between organized religion and prison populations is also interesting. When imprisonment began to be viewed as a rehabilitative process, rather than just punishment for crime, the conception of rehabilitation was to essentially lock the prisoner in a cell with a bible and tell him to find God. He would be considered rehabilitated once he had taken up religious convictions. Even today, there is a huge amount of outreach by religious groups into prison life, even to the point of investment into private prisons. The cynic might view this an easy way to reach new converts (a captive audience, so to speak), while others can validly point to social support and community assistance that many of these religious groups provide. In any case, it seems like there is something about imprisonment that often leads to religiosity. My own feeling is that this is because of two different aspects of religion. The first is that many religions preach messages of forgiveness for those who have sinned or done wrong if they provide some sort of atonement; that there is nothing that is unforgivable so long as they open themselves to God. For a prisoner who feels guilty about his actions, this may be a very attractive message. The second is that it guarantees that the prisoner's suffering will end eventually and that he can reach a heavenly afterlife. This is the same line of reasoning that was promoted to keep slaves from rebelling: that life on earth might be horrible now, but what is that compared to an eternity of salvation? So while religion can be an avenue to reform and a source of support for reintegrating into society, it also seems like it can be a force for keeping an entire underclass of society in their place.

God and Justice (part I)

      I've decided to break this post up into two parts: abstract and practical. This is partly due to scheduling, since next week will be cut short by the holiday, and partly due to the fact that the intersection of religion and justice is a particularly interesting one for me. I'd like to begin with the abstract.

     Typically, religious doctrines prescribe a certain way of living or set of rules that are in accordance with what can be considered divine, transcendent laws. In many religions, holy books and scriptures also lay out consequences for what happens when one does not follow these laws, usually punishment in either earthly life, or in the next life. In many denominations of Christianity, for example, to be an unrepentant sinner is to be damned into hell for eternity. We might then view God as the ultimate judge, jury, and executioner.

     But what can the role of earthly punishment be in light of the existence of the God of Abrahamic religions? If we take God to be omniscient and omnipotent (as many religions do) and also consider Him to be a being that ultimately gives people their just deserts (reward or punishment in this life or the next), it would seem that humanity does not need to assume the role of the punisher. In the past, when monarchies ruled by justification of Divine Right, it was assumed that whatever punishment or action taken by the officials of the state were simply extensions of the will of God. Now that many of us live in democratically elected governments and states that are at least tolerant of religious pluralism, it is likely (and perhaps necessary for many) that we think of civil authorities role in a different way. For example, if God is going to do ultimate justice, perhaps our role in treating criminals need only to be protection of the broader community. This was partly the contention of St. Augustine: that the purpose of punishment in a secular state was not to realize any type of justice but to keep people in line; that peace and order were made possible by fear of punishment. Would this allow us to see our punishment of criminals differently? Perhaps. It might reduce the amount of judgment or amount of harsh treatment we place upon criminals. It might also lead us away from the prison system as the end-all-be-all form of punishment.

     Another interesting aspect of religion and justice is the blameworthiness of an individual created by God, which ties somewhat into my discussion of Neuroscience last week. If we take the principle of imago Dei, that all human beings are created in the image of God, and also believe that He knows everything about us, passing judgment becomes almost a trivial exercise. To illustrate my point, let's say that I am born with kleptomanical impulses that are so strong I cannot stop stealing things from my family members no matter how harshly I am punished. In a religious worldview, however, presumably I have both been endowed with that trait by my creator. In this sense, it would seem cruel at best to blame me as a person for my kleptomania if it was a trait given to me by God. This, I think ties in to the concept of original sin. If all humans are born with a sort of tendency toward sinning, then how can we truly be blamed when we do? As Thomas Talbott wrote in a paper titled Punishment, Forgiveness, and Divine Justice, "if we are subject to evil impulses not of our own making, then God has less to forgive us for, not more."

    It also seems apparent to me that the communities that consider themselves the most religious are some of the strongest proponents of the death penalty. Somewhat related to my first question, I am curious as to whether the death sentence is not as big of a deal in a religious worldview as compared to a secular worldview. This is not to suggest that the taking of a life is not a serious matter for the religious believer. Instead, for the believer, death in this life only serves as a transition to the next one, whereas for the non-religious, death is the ultimate end. In this way, the death sentence is not so much a judgment itself, but rather a sending of a person onto their true judgment. If that person is destined for heaven, it might be seen as a reward, sparing the person years of misery in jail in favor of eternity in paradise. If destined for hell, well then we have made sure a truly wicked person does not enjoy any more earthly pleasures.

    Many of the considerations above revolve around a certain type of religious conception, mainly a broadly-painted Abrahamic worldview, and it is certainly true that not all the assumptions made above apply completely to many religious believers. However, I believe much of what constitutes religious justice as a whole is a desire for what can be called cosmic justice: that in the long run, the universe we live in is fair, and that truly good people will have truly good things happen to them. As my Sophomore year Philosophy of Religion teacher put it, "it is the hope that, in the end, the good will out." The darker, other side of the coin , however, is that the wicked will get what they deserve. As we have seen, there are problems in both attributing wickedness and holding someone responsible for their wickedness. But I think the larger problem is that it frames cosmic justice as a zero-sum game: the good get what is theirs at the expense of the bad and there is no room for growth, for the world to be made better. The stage is set from the beginning. All there is left to do is to watch the cosmic pluses and minuses play out.

Other Thoughts and Considerations

• To be sure, there are messages of hope, redemption, forgiveness, and compassion contained in religious scriptures. There are also plenty of religiously-based outreach groups that are focused on moving away from retribution and vengeance and subscribe more to restorative-based approaches. Thistle Farms is an example of one such organization. 
• Some readers of scripture read many of the passages concerning retributive justice as ensuring proportional response rather than over-the-top ones. At least one analysis of the famous eye-for-an-eye passage as preventing wholesale slaughters of a village by way of response to the murder of a member of a different village.
• I'll be posting again on Wednesday with an analysis of certain religiously-prescribed laws of justice, some thoughts on the religious activism around the death penalty, and hopefully some responses to the above questions by various religious experts that I've been in touch with. 

    

   

This is Your Brain on Punishment

     In 1980s, Benjamin Libet, a physiologist at UCSF, performed a famous experiment that showed activity in the brain's motor regions about 300 miliseconds before the person has made the decision to move--effectively making Libet knowledgeable of the subject's intended action before the subject was. More contemporary studies have allowed scientists to predict whether a subject was going to press a button with their right or left hand up to 10 seconds before they performed the action with a 60% accuracy rate (Soon et. al 2008). These experiments, along with other advancements in the field of Neuroscience point us away from our standard conception of free will: we are not, in a pure sense, consciously aware of what actions we are taking and why we are performing them. It is only after we look back that we interpret them as freely chosen.

     How, then, can we reconcile these ideas with a criminal justice system that relies upon the (somewhat Kantian) notion that each person is a free-willed and autonomous individual. To be sure, there is already some consideration of the development of the brain in the way adolescents are sentenced. In Roper v. Simmons, the Supreme Court of the United States ruled that it was unconstitutional to impose capital punishment for crimes committed by those under 18. Part of the courts decision rested on amicus curiae briefs by psychological organizations, citing that parts of the brain responsible for decision making and impulse control are often not fully developed until one's late twenties. In cases of juvenile offenses, offenders can be argued to have diminished capacity for their actions, as the instrument of the decision-making is not fully formed.

     But where does this leave us in respect to the rest of criminal law? An oft-cited paper by Joshua Greene and Jonathan Cohen, indicating "free will as we normally understand it is an illusion generated by our cognitive architecture", seems to espouse a move away from retributivist notions of punishment toward consequentialist practices. In doing so, we avoid judging the 'soul' of the criminal for forces that he or she cannot control. Greene and Cohen believe this to be a more humane theory of punishment.

     There are other implications and problems that need to be taken into account. Interviews with many death row inmates reveal histories of subjection to child abuse, unstable family life, and inability to make caring connections with parental figures. They can be viewed, in Sam Harris's words, as "poorly calibrated clockwork". And given these early life events are both generally out of the control of the individual and can have a large impact on the development of the individual's brain, how responsible can we truly hold them for their actions? What of sociopaths who are born without the ability to empathize or assess risk? 

     Imagine that, in an experiment, we could take a child with all the genetic risks for criminality and subject him to a life where he lives in poverty, is subject to abusive relationships, and has no parental support. He goes on to commit a crime. Should we be surprised at the result? Probably not. Were many of these factors within his control? Some might say that he still had the choice over whether or not to commit the crime. Others might say that given the events of his life, he had no choice but to commit the crime. 

     A third question comes into play: do we still hold him responsible? To be sure, we can still take the crime seriously as something that has very real consequences and does very real harms to victims and society. But perhaps the blameworthiness of the offender is something that we can reconsider; that instead of judging his soul, whether or not he is a good or bad person, we should instead assess the harm that he or she has done, and make an effort to repair it. Those who go to prison are often faced with public scorn and shaming: they become outcasts and fringe members of society. It becomes much harder to hold gainful employment after being convicted of a crime. In eliminating the judgement of the criminal as having badness inherent to their being, we can reduce a hard distinction between the criminal and the rest of society. This is not to say what he has done is not truly his fault: he should still be held responsible for his action. But to publicly brand him as an outcast is not only a disservice to our findings about decision-making, but also makes it much less likely that he can ever reintegrate into his community.

Other Thoughts and Considerations

•  Foucault speaks a lot about psychiatry and other social sciences as politically-informed knowledge that beget their own forms of violence. Psychiatry can have the mentally-ill committed to carceral institutions and subject to treatments against their will. Foucault even speaks of psychiatry as a way of society 'suiciding certain unwanted elements of society'. This is especially relevant in light of many neuropsychologically-based treatments for criminals. One paper I read this week spoke about the ethics of frontal lobotomies and chemical castrations as forms of treatment in lieu of prison sentences. Another spoke about the possibility of brain-o-typing, a system in which brains with criminal tendencies could be detected long before crimes had been committed and protect society from them. These seem like the exact types of violence that Foucault would advocate against.
• This Wired article talks about the neuropscyhology of revenge. In a series of experiments, it was found that men who observed people getting their just deserts showed activation in the dopamine reward pathway of the brain. If we are to speak about human nature, then, perhaps we can also speak of the inherent desire we have to punish others for their transgressions (and the good feelings we get from it).
• Neuroscience is still an extremely young field in the scientific world. There is still much to be learned and what is en vogue today may be shown to be completely false tomorrow. In our considerations of neuroscience in relation to the justice system, we should be careful in taking supposed evidence as the bottom line for our judgments.
• Next week's topic will focus on the role and relation of religion to punishment.

The Power of the State

    Even before news of the PRISM leak and the revelation of the NSA's widespread surveillance practices, I had decided to spend this week reading Michel Foucault and his work on the relation of the state and practices of punishment. It occurred to me that in most cases, it is not the victim who decides the punishment, but rather those who we view as an impartial third party (judge, jury, etc.) who dole out justice. What, I wondered, made it so important that the apparatuses of the state be responsible for punishment?

     To start, I think it's important to address conceptions of legality and justice. Often, especially in our practical usage of the terms, the two are tied together: it is the role of the legal system to carry out justice. Yet, it would seem that there are occurrences where many would violate the law in order to do  what is 'right' (For an example of this, look to the many European citizens who hid and sheltered Jews during the reign of the Third Reich). Here, there is an appeal to an idea that there exists a  transcendent ethic of right and wrong beyond what can be defined by legalities, or put in different terms, there may be areas where natural law and laws of the state either do not overlap or are in direct conflict with one another. This idea has been long debated, notably in Sophocles's Antigone, over whether it can ever be morally acceptable to subvert the laws of the state. Should we accept the idea that there are moral rules that supersede those of the state, it would mean that, in some cases, the actions of the state in the name of justice are unjust themselves and should be met with punishment.

     On the other hand, we might argue that the laws of the state are the end-all-be-all of behavioral rules and that should a person take an action that violates the laws of the state, he or she deserves to be punished. French social theorist and philosopher Michel Foucault essentially says that this is how the state implementation of justice works: not on the basis of drawing from some transcendent rules of morality, but rather to ensure an obedient, conforming population in the name of creating a better society. We punish crimes like drug use and vagabondage because society wishes to promote the idea of the rational, conscientious individual that participates in society. Justice, then, is not a moral good, but rather an exercise of power.

    We can see this power relation in the way that crimes are framed as an offense against society as opposed to offenses against the victim. In our criminal courts, prosecutors are representatives of the state. In fact, trials have names such as California v. Greenwood or United States v. Windsor. In criminal cases, the individual is placed in direct opposition to the state and the rest of society. When he or she is punished, it is a unilateral penalty levied by the rest of society that the punished individual has no say in. When the individual is incarcerated, he is removed from society and, as Foucault points out in Discipline and Punish, by making time in incarceration part of the punishment, the prison expresses concretely the idea that the action has injured society as a whole.

     What this essentially leads us to is a Nietzchean conception of might makes right. Foucault stated this himself in a 1971 debate with Noam Chomsky:

It seems to me that the idea of justice in itself is an idea which in effect has been invented and put to work in different types of societies as an instrument of a certain political and economic power or as a weapon against that power.

What Foucault is  getting at is that justice, as exercised by the state, is called justice because it is wielded by those in power. And while we may justify the practices of the state's governance of legalities and justice with a Hobbesian social contract, it seems that citizens of the state do not have any real way of actually consenting to this social contract. They are, instead, mostly governed by the fact that the state holds power.

      There are two consequences of Foucault's notion of justice as power that I would like to discuss. The first is the punishment of the revelation of state secrets or criminal activity of the state. When Edward Snowden planned to release information about the NSA's PRISM program, a blatant violation of the United States Constitution, he fled to a different country in fear of retribution from the United States government. The treatment of Snowden and other whistleblowers who point out crimes of the government further demonstrate Foucault's illustration of justice as a Nietzchean function. Because the state has a monopoly on the exercise of justice, any action that harms the state, whether or not it is beneficial to her people, is treated with harsh punishment, force, and coercion.

    Secondly, I want to point back to the idea of justice as an instrument of both political power and also a weapon against that power. If justice merely becomes an exercise in demonstrating force, then those to whom the force is applied should be seen as justified in fighting back and taking power for themselves. In a lot of ways, I believe this draws a parallel to Hegel's master/slave dialectic, insofar as oppressed populations can also use justice as violent tool against their oppressors, since whoever possesses more power is the one who chooses what defines justice. In essence, this implies that a nation or state that uses violence and coercion to ensure justice is done cannot make complaints about being attacked by those it is applying violence and coercion to, since the state is endorsing a worldview of retribution and force. This is by no means an excuse for violence done in the name of justice; rather, it simply shows the logic of the age old axiom that violence simply begets more violence.





    The first video above is footage of American citizens celebrating the death of Osama Bin Laden. The second video is of  Palestinians celebrating the 9/11 attacks on the World Trade Center. While there are certainly very relevant and important differences between the two, both depict ecstatic celebrations of the death of others in the name of justice being served. When force and justice are tethered to each other in a way that they cannot be unbound, I expect this is the way the world will continue to be.

Other Thoughts and Considerations

• The power of the state is not always exercised by those in control of the state. Power, I think, can be much more diffuse and invisible than is tangible, especially in respect to the way members of societies interact with one another. Foucault's chapter on Bentham's Panopticon in Discipline and Punish is a great tool for understanding this, and also a great tool for examining the NSAs recent actions.
• In the Chomsky/Foucault debate, Chomsky had an interesting response to Foucault's conception of justice : "And in such a circumstance, the kind that you describe, where there is no question of justice, just the question of who's going to win a struggle to the death, then I think the proper human reaction is : call it off, don't win either way, try to stop it-and of course if you say that, you'll immediately be thrown in jail or killed or something of that sort, the fate of a lot of rational people."
• Next week's topic will likely be on the intersection of neuroscience and justice.

The Lex Talionis, Retributivism, and a Fair World

     In terms of justice, the lex talionis is one of the most long-standing guidelines for how to treat criminals and what is essentially the golden rule of retributivism: the criminal deserves the crime he committed inflicted unto himself. As Leviticus 24:20-21 states, "fracture for fracture, eye for eye, tooth for tooth. Just as he inflicted an injury upon a person, so shall it be inflicted on him." 

    Despite its lengthy presence in philosophical thought, it's not too difficult to find some problems with the lex talionis. One problem is with the difficulty in punishing certain kinds of offenses that would involve some kind of imbalance between punishment and crime. For example, should the rapist be raped in return? What about the punishment of a kidnapper if he or she has no children or loved ones? Other problematic crimes arise when there are no victims, or the victims are so numerous that any harm done becomes so diffuse that it is impossible to measure (crimes such as tax evasion, drug use, and so on). Many retributivists defend this problem by formulating the punishment in terms of some type of proportionality to the crime: that in some way, the punishment must be proportional to the harm done and culpability of the criminal. And while this seems like a good principle to abide by, it still seems that there is no non-arbitrary way to establish a good measurement of proportionality of harm to both the victim and the offender.¹ In other words, in keeping with this principle, how can we legitimately measure how much harm incarceration does (for a certain time period) as compared to the harm done by buying illegal substances? While, in certain frameworks, it might be logical to say the criminal reaps what he sows, there is certain difficulty in establishing what exactly it is that he has sown.

    The idea that the criminal should get his just deserts, despite its ancient origins and criticisms, is the backbone of retributivist philosophy. One of the main defenders of retributivism is Immanuel Kant. As S.I Benn writes,

"The most thoroughgoing retributivists, exemplified by Kant, maintain that the punishment of the crime is right in itself, that it is fitting that the guilty should suffer, and that justice, or the moral order, requires the institution of punishment. This, however, is not to justify punishment but, rather, to deny that it needs any justification...Its intrinsic value is appreciated immediately and intuitively."²

     For Kant and many other retributivists, then, we see that punishment is not a means to an end (i.e. deterrence of crime, safety for the community, reform of criminals, or other such justifications of punishment), but actually an inherent good without need for justification.  In fact, for Kant, justice would be a moral evil were it used merely as a means to deter crime or reform criminals since that type of punishment would violate his categorical imperative, which states that a human being must never be treated as a means to an end. Kant states as much in his writings:

"Juridical punishment can never be used merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else."³

     In this kind of formulation, it becomes apparent that for Kant, punishment and justice are primarily about fairness. A person's punishment is not based upon its utility to society, but rather an idea of the world as a rationally ordered place that we have an duty to keep in balance. One formulation of retributivism might simply be that we have a duty to maintain a balance of happiness and suffering among people proportional to their moral actions.⁴ And while we might think that this is a foolish in a certain sense, that it would be impossible to maintain a society in which this balance were always maintained, it's undeniable that this type of balance makes a certain kind of logical sense.  In fact, psychological research has shown that people generally have a strong interest in maintaining the appearance of a 'just-world' that makes logical sense. In a series of experiments in the 1960s, Melvin Lerner noted that in cases where people observe harm or suffering visited on someone else, they tend to degrade the other person, believing that he or she has done something to deserve said suffering. It may be ingrained into humans, whether by nature or conditioning, to view the world as governed by a cosmic game of cause and effect in which those who do bad naturally have bad visited unto them.

     But I think it is fair to say that any proper analysis reveals this to not be the case. We are fully aware that bad things happen to good people and vice versa. We hear stories of newborns who diagnosed with a terminal disease before they have even reached a year of age. We hear stories of corrupt bankers who live out their lives in prosperity without ever facing the consequences for embezzlement or other immoral practices. And perhaps Kant would see this as evidence that we have a duty to fight harder to maintain this balance, that there is a great necessity to bring things to an even keel. But I think that the visible 'unfairness' in the world perhaps points toward the fact that a supposed duty to maintain balance in the world underlies a misrecognition of both human motives and cosmic forces.

     In one sense, Kant's formulation of retributivism assumes a society of autonomous, rational equals. In his formulation of justice, he takes for granted that each person within society has autonomous freedom and is capable of rational thought. This, I believe, ignores many of the conditions under which wrongdoing occurs, such as that of poverty, extreme duress, and so forth. And while the assumption of autonomous offenders is certainly problematic, what is possibly even more flawed is the idea that those who dole out punishment can be dispassionate and fair-minded. As James Q. Whitman points out in "A Plea Against Retributivism", when we punish another, we tend to hold it over their heads: we place ourselves as superior to those we are punishing. In the way that Kant's formulation of retributivism implicitly involves a forfeiture of rights on the part of the criminal, so do we come to degrade offenders as socially inferior.

     Kant would likely contend that to treat someone on the basis of their action is to respect them as a rational autonomous being. However, it would seem that any system of punishment that places punisher and offender on unequal social levels is not capable of allowing for any sort of respect between equals. Nor does it allow for healing, growth, or improvement for either the offender, victim or the punisher. We must also not ignore the fact that punishment effects both those who receive it and those who carry it out. When blame is assigned in any situation, it tends to be something that gets people excited and vindictive.

    So while retributivism can certainly be seen as a (relatively speaking) logically consistent system, I believe that it does not do very much to foster the growth of humanity on both an individual and societal level. Much in the same way that Freud in The Future of an Illusion asked whether or not humankind might 'grow up' and move beyond religious belief, I am curious as to whether, in our consideration of justice, we might be able to move beyond a hyper-logical viewpoint of "he did this to me, I should do it back to him" toward a system that can involve growth and healing for each person involved. Is it possible to conceive of justice as something more than a zero-sum game?

Other thoughts and considerations

• It seems that one's political leanings probably inform the types of justice they desire, which likely stems from their overall worldview. For example, I am interested in the way that conservative media has garnered a focus on urban crime and gang violence in comparison to liberal outrage over corrupt financial practices. This is certainly a simplification (there are plenty of counterexamples), but it is something that deserves some further research.
• Consequentialism is often presented in opposition to retributivism. In a simple form, a consequentialist conception of justice states that justice is done in the aim of some greater good that benefits society in a utilitarian way. There have been many attempts to show that retributivism is simply a modified form of consequentialism, thus opening it up to criticisms of general utilitarian theory. While there are certainly relevant differences between the two conceptions, both tend to view those who commit crimes as somehow 'less-than' as compared to those who have not committed crimes. Both also seem to view the offender as the main concern of justice while the victim is regarded as secondary to the process. In a certain sense, this makes the two  conceptions different sides of the same coin, as both are concerned with inflicting suffering on the offender.
• Next week's topic is likely to be the political execution of punishment and the way that justice relates to the state.

---

1 Summarized from "Retribution and the Theory of Punishment" Hugo Adam Bedau The Journal of Philosophy , Vol. 75, No. 11 (Nov., 1978), pp. 601-620 ^↩
2 S. I. Benn, "Punishment," in The Encyclopedia of Philosophy, ed. Paul Edwards, 8 vols. (London: Macmillan Publishers; New York: Free Press, 1967), vol. 7, p. 30. ^↩
3 "The Metaphysical Elements of Justice. Part I of The Metaphysics of Morals". Translated by John Ladd, Indianapolis, 1965, p.100^↩
4 "Kant's Retributivism" Don E. Scheid Ethics , Vol. 93, No. 2 (Jan., 1983), pp. 262-282^↩

Welcome to Reconsidering Justice

     This blog is dedicated to following a research project on the differences between restorative and retributive justice and the way each viewpoint contributes to our understanding of how to treat others. It will be a 10 week project revolving around exploring questions like:

• What are the implicit assumptions and implications that can be drawn from societies that utilize retributive justice and those that utilize restorative justice?
• What is the purpose of punishment? What should be the ultimate goal in punishment? In what form should punishment be delivered? Who should administer punishment/justice?
• If someone acts ethically solely because they are afraid of punishment, is this truly acting ethically? Does it matter?
• What role does religion play in justice? What forms of punishment are endorsed in a religious worldview? What role does punishment serve if there is a higher being that will ultimately hold individuals accountable for their actions?
• Contemporary science increasingly points us toward the idea that many of our behaviors and actions are somewhat outside of our conscious perception and are based on intricate processes within the brain. How can justice be administered in a way that is fair and appropriate in light of this neurological model of behavior and decision making?

   
  I will be attempting to post at least once each week (generally on Fridays) and I welcome any feedback, criticism, thoughts and comments you may have.