I am coming to this blog this week upon the news that Jon Venables has been taken back into custody. (You will know that Jon Venables and Robert Thompson were convicted of the Jamie Bulger murder.) There has been much ensuing speculation about the case around all the issues: Should Venables and Thompson have been tried at all, given their age? Should they have been released after so few years? Does rehabilitation really work?....and many more facets to this deeply problematic issue.
Because we are faced with such complexities here, I want to take a look at what we think criminal justice is and how it relates to our perception of what is just, if it does at all. I want to tease apart some of the elements of the very quality of being just and ask some penetrating questions about our purpose in seeking retribution. It`s so big a question though, that I may have to extend to two blogs !!!!!!!!!!!!!!!
Let`s look at the criminal justice system:
The justice system acts upon laws according to prescribed principles based upon what is accepted as criminal or just in any particular society. It metes out punishment deemed appropriate to a crime. Within this system of punishment, there may be a consideration of fairness, proportionality, and various mitigations, but essentially criminal justice is retribution exerted upon the guilty.
But what constitutes guilt and does its changeable nature cause us to confuse our purpose when we deal with it ? After all, a person is not intrinsically guilty, they are only guilty by the attribution of guilt leveled at them by the society or people around them, and the extent of their culpability is adjudged by the hands of subjective compassion.
Let`s look at guilt: Of course, guilt is man-made, it is something that changes from one culture to another, one circumstance to another, one era to another and even one jury to another. It is not something that is fixed universally and certainly is not dispensed fairly, however we might wish it to be. Guilt depends upon the perception of the observer, individually or collectively, and punishment is resultant upon the power that observers have over the person deemed to be guilty. The end result is a changeable subjectivity.
Of course, knowing that guilt has to do with power brings another dimension to our understanding. If the very attribution of guilt is about the power, status, social position, majority, group-think, of the accusers, it tells us that society makes laws according to animal/biological motives. This is quite a shock to us, I think, because we tend to think that it is about such noble ends as "right and wrong" and creating a civilised and safe society for us all, but when we look closely we see the curious fact that the law seems to penalise more of our disadvantaged classes than would make its purpose quite so altruistic.
Well, the law, demonstrably, doesn`t always encompass "right and wrong", it claims criminality over selective acts that are practicable to enforce and are of majority, or most powerful, opinion. This means that, for example, it is not a criminal act to commit adultery, it is not illegal to punish children, nor is it illegal to be homosexual, but if mass opinion should change, as fickle as fashion, these things could become punishable by law. When we consider if the law is about power over others... and not about right and wrong.... we see, with at least an uncomfortable suspicion, that the penal system is full of disadvantaged classes, men who have grown up without fathers, drug users, the mentally ill and women who are well used to being victims. Strange isn`t it?
I`d like to ask, are we really comfortable with punishing people for the crimes they commit, even if those crimes reflect their social background? Is someone really deserving of punishment if they come from a broken home, a drug ridden social environment or have been drawn into gang culture because gangs control their neighbourhood? And are we not responsible if we do little or nothing to make social change? With this thought, everyone has a mitigation when it comes down to it: a child has an incomplete comprehension of their position, someone from a deprived background has a rooted mindset that propels their actions, even someone well off financially who becomes a thief, is the victim of their own greed, insecurities or one-upmanship-drive. A persons psycho-social makeup causes them to commit criminal acts and this is all part of our insider/outsider, inclusivity/exclusivity, group structure. In plain language: we, as a society, create the victims around us and we punish them for it, to boot.
Continued in my next blog.......