In “A Theory of Justice” John Rawls defines the institution of justice as being “a public system of rules which defines offices and positions… These rules specify certain forms of action as permissible, others as forbidden; and they provide for certain penalties and defences, and so on, when violations occur.” Rawls continues on stating “An institution may be thought of in two ways: first as an abstract object, that is, as a possible form of conduct expressed by a system of rules; and second, as the realization in the thought and conduct of certain persons at a certain time and place of the actions specified by these rules.” Therefore, it becomes rather apparent that there are great ambiguities which can arise in the matter of justice.
Justice systems have evolved from the dark ages of Thomas Hobbes’ natural state of man. In “Leviathan” Hobbes describes this state as follows: “During the time men live without a common power to keep them all in awe, they are in that condition which is called war; and such a war as is of every man against every man.” Over this evolution, the most arduous of tasks has been the balancing of that power with the rights of the individual. Certainly, in some totalitarian incantations of justice, individual rights were sidelined as torture and summary executions were common practise. Certainly, history is not at a loss when it comes to those who have lead with fear.
In Western nations such as my own, Canada, governments have endeavoured to move toward more humane justice systems, with a primary focus being rehabilitation and reintegration into society. In the early 1970’s the death penalty was abolished in this Canada. The United States seems to be on a similar line when it comes to its justice system, even though several U.S. states still have capital punishment.
Certainly when we speak of the Criminal Justice System, we are speaking about a system where the pendulum is in perpetual motion and precedents are set by the Supreme Court Justices of the day, much in line with what Rawls stated. Being in the frontlines of the system in Canada, however, I wonder if the pendulum has possibly dislodged from its anchor and has commenced rolling in a new direction. The transformation that seems to becoming apparent in both Canada and from my observations of the American system, is from being a justice system to becoming a legal system.
Case in point: in Canada if you are convicted of a crime, you immediately have more rights than other members of society at large, losing only your mobility rights as a result of your incarceration. When you become a ward of the state you are entitled to three meals per day, an hour minimum of fresh air exercise, discounts on things like tobacco, free legal aid, clothing, heat, electricity, satellite television, visits (including overnighters in trailers even for convicted murderers), phone calls and you can vote in elections. Where does all of this come from if you are a law abiding citizen? If I don’t pay my electric bills, cloth and feed my family, who will?
Somewhere in our quest to become a more humane system and one that seeks to return the vast majority of Offenders back into the community at large, the shift has gone from the victims of crime to assisting the perpetuator of the crime in hopes that they will not commit these acts again. In theory, much like Marxism, this sounds viable. In practise and given the endless factors affecting the criminal element, this system is dangerously flawed.
This also demonstrates the transformation from a justice to a legal system in that the system that we presently are utilising is based entirely on the rights of the individual; a reaction against such totalitarian regimes as previously depicted. The result, however, is like taking too much medication for a particular ailment, resulting in consequences fare more dire and extreme. For example, a man rapes and kills a child. The family will receive some community support. If they are fortunate they will have insurance to pay for the counselling and anti-depressant medication that they may well require, the funeral, etc. Perhaps not. And our child killer? Sentenced, psychologists and psychiatrists at his beck and call, all his necessary medications provided at the taxpayers expense, courses in anger management, eventually to work his way down through the system when, perhaps 15 years later, they will be released to a half way house.
In the media we constantly receive dangerous offender reports. These are reports of violent Offenders or sexual predators who have been released from prison because their sentences are up. This happens almost daily in this country. Now if the second mandate of our Justice nee Legal system is to protect the public at large, how then can it justify the release of such predators back into the community? The official answer: it is their legal right.
In my opinion, all serious sentences should be indeterminate in duration. After convicted of a crime, that Offender should be remanded to the appropriate maximum or medium security facility where they have to complete a battery of programming. Eventually, earning their way down to minimum security prisons and, finally, half way houses in the community, Offenders sentence lengths would be totally determined by the individual’s compliance and completion of programming and good behaviour. Privileges inside the institutions would also be dependent on behaviour and could be taken away as easily as granted.
The exceptions would be for individuals convicted of first degree murder and sex offenders.
Further to this system, which we will call the A-Track, would be the Z-Track. The Z-Track would simply be maximum security institutional warehouses where those convicted of murder in addition to any individuals who have gone through the A-Track and commissioned a second serious crime. Life would consist of basic nourishment and one hour fresh air exercise and nothing further. Executions would be at the request of the inmate as an alternative.
The Z-Track might seem excessively harsh, but we must reconsider this position. If a persons commits a crime so terrible such as child rape or cold blooded murder, what possible motive exists for ever allowing them to return to society and, further to this, I ask how we could justify the risk to society. As for those who have been through the A-Track and re-offended, I also believe that it is justified to state that society went out of its way to assist this individual to become law abiding. Life does not offer many second chances, so why should criminals be given multiple opportunities, given the cost of their actions? It was written in the Magna Carta “To no one will we sell, or deny, or delay, right or justice”. Certainly I can see how this can be used in defence of the Accused, as certainly the Magna Carta was largely written to prevent against the whimsical excesses of Old World Europe. My point is that when convicted “by the lawful judgement of his peers and by the law of the land” that we need to appropriate an adequate measure to keep the scales balanced.