Workshop 10
How to change the criminal justice system to strengthen our defenses against crime and better help criminals to rehabilitate?
HOW TO CHANGE THE CRIMINAL JUSTICE SYSTEM TO STRENGTHEN OUR DEFENSES AGAINST CRIME AND BETTER HELP CRIMINALS TO REHABILITATE?
The idea is to discontinue the practice of punishing the guilty. Society’s defense against criminals could become more effective if the need to punish the guilty does not determine how the penal system operates. Without the obligation to punish, courts will only decide whether the accused persons are guilty as charged and whether they must be confined. Confinement will not be punishment, only a measure necessary for defending society. The courts will not determine how long the confinement period will be; the convicts themselves will settle it by their attitude and behavior. They would be free to go as soon as they have completed their rehabilitation program. During confinement, it will be their responsibility to design their rehabilitation program and obtain a go-ahead from correctional authorities that their program meets the requirements. Convicts will collaborate with the confining facility personnel on implementing the program until they have completed all its assignments and passed. Then they would be free to go.
Please suspend until later your judgment on the feasibility of this proposal in defending society from criminals until we address what is arguably the main reason why the zero-punishment system of criminal justice has not been tried. The reason should be that the very concept of justice in the deepest layers of culture is inseparable from punishment. In my experience, the toughest resistance to making crime control more aligned with human nature, moral values, and the need to defend society lies in people’s hearts and minds.
“Punishment” means doing to others what is hateful to you because they deserve it. It is not self-defense; it means causing pain and suffering to people who have already been apprehended, helpless in your power. That is what it is, but its justification is overpowering, deeply rooted in people’s beliefs since immemorial times.
God, the supreme concept of justice and virtue, has been the biggest punisher, administrating hell which for millennia is believed to be the worst punishment, not just a life sentence but an eternal life sentence with torture.
It this workshop were video typed, I would have shown you a painting by a fifteenth-century German painter Stefan Lochner. It depicts the punishment of Punishing evildoers on the Day of Judgment. You may find in in the Internet and, if you do, take some time to look at the details. The flying black creatures resembling bats are angels. The heavenly authorities up there are not involved in the actual punishment. Those who punish are satanic monsters. This painting conveys the idea that a just and merciful power does not do such horrible things. Saints are not responsible for the actions of their agents who carry out their verdicts. However, we are not saints, and in the painting, you can also see that only devils do such things.
Morally, punishment is believed to be the just and right thing to do to those who have sinned or transgressed the commands of God and society. Justice is served when the guilty are punished. Conventional wisdom maintains that without punishment, there can be no justice. Since we were children, punishment has been considered the deterrent to crimes, misdemeanors, and misbehavior. More often than not, it was deemed the only deterrent without which antisocial persons will turn society into a living hell.
Against this enormously heavy mountain of social, cultural, and psychological forces that endorse punishment as ethically just and practically necessary, I propose an alternative in which justice is served and society is defended better by altogether abolishing punishment in the administration of justice. I put this alternative on your agenda hoping that some readers would find it worthy of support and promulgate it in their place and time until a pilot project of defense against crime with no intention to punish is initiated somewhere.
Social science cannot inform us about issues of right and wrong, such as whether the concept of justice can be just without punishment or whether justice cannot be just if it commands to do to others what is hateful to us even as we believe it justified. Psychology can inform us much about the truth that punishment, in many cases, is a rationalization of aggression and cruelty by those who punish. It is indeed difficult to maintain that people who cheered, “Justice is served,” in spectacles of punishment, whether legal such as burning the heretics or electrocuting murderers on the electric chair or illegal as in mass rallies for lynching, did it out of their passionate love of justice.
Admittedly, the fact that malicious aggression and cruelty are being justified as punishment whereas the punishment of the guilty could be a projection of one’s own criminal drives on others will not be a valid or even a fair argument against legalized punishment by authorities who punish not to realize their aggressive ulterior motives but to serve justice and defend society.
Against such a cultural background, I believe that punishment, like war, like any aggression against the helpless, is bad and dangerous to one’s morality and life. Forcefully doing to others what is hateful to us can be justified only as self-defense to prevent even greater danger and loss of life, only as a last resort. But then, like fighting in war, it should be motivated by self-defense and not by the belief that punishment is the way to exact justice. This realization demands that we will not punish but look for better alternatives to defend society from evildoers. If better alternatives exist, punishment as an agency of justice is wrong.
My moral rejection of punishment is, of course, not unique or original. Coretta Scott King, Martin Luther King's widow, ought to be quoted here:
"As one whose husband and mother-in-law have both died the victims of murder assassination, I stand firmly and unequivocally opposed to the death penalty for those convicted of capital offenses. An evil is not redeemed by an evil deed of retaliation. Justice is never advanced in the taking of human life. Morality is never upheld by legalized murder."
The concept of justice that underlines this proposal is that of restorative justice. Justice is served by righting the wrong. Criminal wrongs will be righted by doing the right things to prevent crime. Victims will be additionally compensated by knowing that society does rightly what must be done against the danger, preventing it from happening again.
If the zero-punishment conception of justice were ever publicly discussed, perhaps the true believers of punishment could be somewhat relieved by the philosophically reached conclusion that punishment is not banished from justice after all. What is rejected is one person’s will to punish another. But think of it—what worse punishment could you inflict on yourself than committing a crime, murdering, or stealing? Young and old wrongdoers have already been punished by becoming criminals. Now let us not punish ourselves by punishing them.
ZERO PUNISHMENT AND PUBLIC SAFETY
A 2023 analysis of recidivism rates by the U.S. Department of Justice concluded that 82% of individuals released from state prisons were rearrested at least once within 10 years following release. Within one year of release, 43% of formerly incarcerated people were rearrested. The rate of recidivism is highest among juveniles, who are most suitable for rehabilitation.
When the zero-punishment system is introduced somewhere, its effectiveness in public safety could be compared to other districts and statistically proved or disproved. Until then, with all available data, it should be safer for the public than the administration of conventional criminal justice.
The zero-punishment system does not renounce the use of force to control convicted criminals. If the court considers convicts dangerous to society, the verdict includes confinement. However, without the intention to punish, taking from the convicted their freedom and incarcerating them is not punishment although many will argue it is. The proof that it is not is that in the no-punishment due process, the law does not prescribe incarceration as punishment for a duration proportional to the severity of the crime. Confinement is imposed as a precaution, not as a punishment, to defend society for as long as the convict is considered a danger.
In the zero-punishment administration of justice, some convicts might be confined for life if their keepers continue to consider them a danger to society. In contrast to the existing criminal law process, dangerous criminals will not be released back to the community only because they have finished serving their time. This would be an important security advantage of the zero-punishment system. The time of their confinement will not be determined by people who could not know them in the future time they would be sent back to the community after they were punished or, as the saying goes, “paid their debt to society.”
In the zero-punishment alternative system, facilitators of prisoners’ rehabilitation process who know them well will decide if and when to set them free. The professional staff of the correctional facility will feel responsible for the recidivism among graduates of their rehabilitation programs. Their decisions will be well informed, and the modern electronic control means will help them avoid wrong decisions.
THE HUMAN RIGHTS OF CONVICTS
Prisons in different countries and even within countries are as different in protecting convicts’ human rights as a luxury hotel from an open ditch on a battlefield. In many countries, some of the worst convicts live as if they were not being punished but instead rewarded with an extremely high standard of living, including servants, sex slaves, and drugs. Others are punished terribly in the cruelest ways law does not intend them to suffer. Strong prisoners mistreat them as if they were sentenced to live under reign of terror and fear of being beaten, killed, raped, robbed of their rations, and forced to work the worst jobs.
If the zero-punishment system is introduced to a prison with no effective control over inside crime, the change will require a complete separation of inmates working on their rehabilitation programs from those who are yet to work. The human rights of confined convicts who are rehabilitation-bound will be better protected if they are separated from prison society and its criminal anti-culture.
In addition, with no obligation to punish, prisoners well-known to their keepers as fully rehabilitated and reconciled with society will avoid remaining incarcerated only because the time of punishment has not expired.
THE CHANCES OF REHABILITATION
Expectedly, it has been established that offenders can be rehabilitated without punishment. The “long-standing principles” of restorative justice are the five R’s: relationship, respect, responsibility, repair, reintegration. There is no P for punishment. According to the American Department of Justice, “research shows that restorative justice reduces recidivism, increases victims’ satisfaction with the justice process, and reduces the psychological trauma of crime.”
In a zero-punishment environment, the chances of successful rehabilitation should be even greater. From the first day of custody, arrested criminal offenders will know they are under the power of a society that provides them with the opportunity to change and be accepted back as equal citizens. In the criminal justice system, they know they have been punished.
One of the strongest motivational drives in people is their conformity to their social environment. Offenders in the zero-punishment justice system will conform to rehabilitative society. If punished, they adhere to the antisocial criminal society in prison where punishment is the daily rule of conduct. There could be no reasonable doubt that the rehabilitative environment will be more conducive to rehabilitation.
The fundamental hypothesis of restorative justice is that “people are happier, more cooperative and more productive, and more likely to make positive changes in behavior when those in authority do things WITH them, rather than TO them or FOR them.” The process of the zero-punishment administration of justice goes beyond this; its fundamental hypothesis contains the finding that people are more likely to make positive changes in behavior when those in authority do not render them completely powerless and dependent on them but trust them to be given their due share of power and freedom to redeem themselves.
Finally, how would the transition to a zero-punishment method of criminal justice affect the mood of society at large? A gradual decline in the centrality of punishment as a legitimate way to respond to people who do us wrong will likely elevate the general level of kindness and tolerance. Worth trying.
Our Problem
An enormous proportion of convicted felons, in particular the young, repeat offending after serving their terms.
Ethical Problem: We are doing to others, who are already in our power and cannot hurt us, what is hateful to us because we believe they deserve it.
Our Workshop
Discussing a Zero Punishment Judicial Process Program, its service of Justice and its likely effects on public safety, the lives of convicts, and of the prison personnel. Confinement will be a measure of self-defense – not a punishment.
The courts will not determine how long the confinement period will be; the convicts themselves will settle it by their attitude and behavior. During confinement, it will be their responsibility to design their rehabilitation program and obtain a go-ahead from correctional authorities. Convicts will collaborate with the confining facility's personnel on implementing the program until they have completed all its assignments and passed. Then they would be free to go.
FAQ
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What will be done with convicts who'd refuse to design their rehabilitation program or will not pass its assignments?
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How can rehabilitation take place in a prison culture dominated by the worst predatory criminals?
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