ON WHETHER CRIMINAL PUNISHMENT IS JUSTIFIED

ON WHETHER CRIMINAL PUNISHMENT IS JUSTIFIED

© Chippy's Dad

Crime and punishment, the subject has been much discussed throughout the ages. Some time ago, I had a conversation with the head of the Lutheran Office of Governmental Ministries, New Mexico (now there is a bit of newspeak). She was leading a discussion on capital punishment. The group of attendees numbered off with one side arguing in favor of capital punishment and one arguing against. It happened that I was in the latter group, against.

The discussion started with the standard arguments that have been repeated often. It seemed to me that no one on either side was really engaged with their own arguments let alone the arguments of the other side. I was no different in this respect than any of the other participants. At one point I changed direction by picking up an argument made by the pro-side and affirming its truth. However, I pointed out; there must always be a doubt about the facts of a crime. Once capital punishment has been consummated, no further relationship is possible. Understanding of the accused is terminated even if an error was made. The argument carried the day. Interestingly, the head of the Lutheran Office of Governmental Ministries invited me to join the office. Naturally, I declined and pointed out that I disapproved of most of what the church advocated in the political arena as immoral. She was shocked to say the least.

My argument was clever, but there remained the question about what justifies any kind of punishment let alone capital punishment. We all do wrong. Each of us regrets errors and hurts we have inflicted on other people. When these transgressions cause damage to another person, they are a crime. Amends are warranted.

How can anyone inflict a punishment when he himself commits criminal errors? The concept is similar to the statement by Jesus: "Let he who is without sin cast the first stone." Since everyone is with sin, no one casts the first stone. In this way, punishment is never justifiable. The presumption must always be that the supposed offender is no guiltier than I.

Putting the onus of punishment in the hands of the state does not solve the problem. If I do not have the right to punish, then I do not have the power to delegate that right. I cannot delegate a power I do not have. Neither does anyone else have the power to punish: for the same reason. Furthermore, my neighbor and I together do not have the power or right to punish. My neighbor and I are two people who have committed many hurts on other people. There is no number of people, who as a group does not have the right to punish a person, where the addition of one more person confers that right on the larger group. The added person also has committed hurts just like all other people. Punishment, by the state, can never be justified.

Does that mean that punishment is impossible? Should people just allow hurts to occur with no consequences for the perpetrator? Not necessarily. Justifications proffered for punishment include revenge (fairness), retribution, education, and incapacitation of the offender.

From the above discussion that we have all committed hurts, revenge cannot be justifiable. No matter how much the victim has been hurt; she has also hurt others and is not in a place where she can cast the first stone. As discussed above, retribution cannot be justified either because the state consists of ordinary people who have also committed hurts and who are also not in a position to cast the first stone.

Education of the offender is problematical. How can one offender, as all people are, presume to teach another offender how to live? Only an arrogant person believes he can educate an offender. No one has walked in the shoes of the offender. As an example, consider a person who has come on hard luck and out of sheer desperation steals groceries to alleviate the starvation of his children. Who can say for certain that one, who would punish this crime, would not have done the same thing if faced with the same situation? Does that justify the crime? Not at all! It does mean that one must possess great hubris to undertake the education of an offender. This author has a hard enough time understanding how to live his own life to presume he can tell another offender how to live.

Incapacitation is the only remaining justification. Again, the question becomes how can one person who hurts another presume to incapacitate another? Herein, incapacitation refers to taking away the ability of the offender to hurt people. For example, putting a person in jail limits her range of actions so that she cannot hurt again as long as she remains in jail. The idea is not even punishment per-se. The punishment is a side effect of the effort to prevent the crime.

The victim can say:
"Because I am not perfect myself, I have a limit as to how much hurt I can tolerate. If you are going to hurt me this way, I simply cannot live with you. I need to make sure you cannot continue to hurt either myself or others."

A huge problem with this line of reasoning is that the victim may not have actually suffered a hurt from the accused offender. Maybe the hurt is a result of bad luck and the victim is reacting from an emotional inability to deal with the hurt and wants to "get even" with someone.

The trial by jury serves the function of preventing unjust punishment. Not only must the victim believe that she cannot live with the offender, everyone else must also believe it. The number 12 for a jury is arbitrary, but whereas the agreement of the entire population is impractical, the number 12 is used to represent the entire population. If 12 people agree that a certain act is intolerable, then on average over time if more than 4% of the population can live with the activity, then on average the accused will be released. (One person on the jury is 8.33% of the jury. If half of the time the 12th juror would vote "not guilty" because he believes he can live with the offender, then on average no more than 4.17% of the population can agree with the 12th juror who votes "not guilty".) This overwhelming majority is deemed to represent the entire population.

The justification for "punishment" is that it is not justified but that because people are imperfect with limited capacity for tolerance, then incapacitating the offender may be necessary anyway. This incapacitation can only be necessary where an actual victim exists; where no less than 96% of the population agrees that the offence was a crime; where the principle object of the incapacitation is to limit the activities of the offender to the restoration of the victim to wholeness; and where revenge, retribution, and education are not of primary concern. Finally, incapacitation can only be undertaken with the extremely humble realization that "There, but for the grace of God, go I".