Was Just Deserts more about a crisis in rehabilitation and a lack of faith in indeterminate sentencing, than any commitment to retributive thinking?
Within the various criminal justice systems throughout the world there has been continuous debate as to whether or not the system should be aimed at just punishing criminals for the crime they commit, or aim to rehabilitate them in such a way that they do not re-offend and continually re-enter the criminal justice system. Since the dawn of time retributive justice in the form of "Let the punishment fit the crime" has been the principle guiding the penalties handed out for various criminal acts, or at least what was defined by the society and the time as a criminal act. This concept is to be found worldwide throughout the ages and usually in its original form in the religious texts that served as the “law” before the introduction of a formal Criminal Justice System, in the Christian world we may be familiar with the following “If any harm follows, then you shall give life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn, wound for wound, stripe for stripe” (The Bible, Exodus 21:23-21:27), one of the earliest examples of accepted retributive thinking.
This form of Justice has one main advantage, the rules are very clear, in its extreme form, if you kill and get caught you will die in turn, and depending on the nature and extent of various other crimes a certain type of justice can be reliably expected. This in many ways liberates members of society as “one who complies with the announced rules need never fear an infringement of his liberty” (Rawls 1971 P241) this allows members of society to plan accordingly within a recognised framework of laws which provide checks and balances on the more damaging excesses of mankind. This is why it has remained a cornerstone of most criminal justice systems worldwide and throughout time, without these firm clear rules society would disintegrate in total confusion, it’s probably also fair to say that without these rules, draconian as they may have been from time to time, society as a whole would not have made the progress it has to date.
However, accepting that a crime has been committed, the first problem with this approach is, who is to judge the severity of the crime, the victim as the judge is likely to consider the crime more horrendous than a friend or like minded companion of the criminal would, and an “unbiased” Judge is likely to be criticised by both for the lack of understanding shown. So some method of constant measurement regardless of the position of the “judge” is required in order to make the judgement of severity work. “Unbiased” must also be considered as a flawed concept as no matter who judges the crime or criminal all are likely to be biased in some way. This is unavoidable as socially constructed humans are only the sum total of their experiences and observation which, even without them knowing it, will influence how they see the world and the actions of their fellow human beings within it. The next problem is to how to devise various punishments based on their effect on the criminal, and to equate them to a given crime. Different cultures throughout time have considered punishment differently, hanging for children convicted of theft was once a common event in Britain, and the removal of a hand or foot in some Arab countries still considered suitable punishment for minor crimes. And who is to judge the most “suitable” punishment for the crime, the victim as the judge is likely to require harsher punishment on the criminal than a like minded acquaintance of the criminal would, and the unbiased Judge is likely to be criticised by both for the perceived severity or leniency of the punishment. Again some method of consistency is required regardless of the position of the Judge in order to make a certain punishment always applicable to a specific crime. Perhaps the most damming aspect...
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