The Justice System is Broken. Why fix it when natural consequences will do a much better job?

“The first thing we do, let’s kill all the lawyers.”

– Shakespeare’s Henry VI.

The Justice System – from cops to courts to jails – is just not working. So why continue on with it? Are we dupe enough to believe that we can actually improve upon a system that already swallows hundreds of billions of dollars every year, that employs millions of people many of whom with stellar educations and noble intentions?

Let’s start with the facts:

In the Criminal Justice System, most crimes go unprosecuted. Most criminals come out of jail and commit crimes again. Police brutality has reached pandemic levels. Like in civil lawsuits, the system favors those who can afford fantastic attorneys who charge between $300 and $1000 per hour over the dozens and dozens of hours of work that a typical case requires. Not being able to afford the fight, criminal defendants plead guilty between 94% and 97% of the time, with 13% of factually innocent defendants providing false confessions because they don’t want to end up serving longer sentences if they risk a trial with iffy facts. [See Why the Innocent Plead Guilty, and What We Should Do About It.]

According to the 2012 FBI Clearances Summary, we’re not doing too well at putting criminals away: approximately 37% of murders, 60% of rapes, 72% of robberies, 45% of aggravated assaults, 87% of burglaries, 78% of thefts, and 88% of motor vehicle thefts are unsolved — and those are only the ones that are reported and known about. Think about how many such crimes go unreported, and you’ll get an idea about how ineffective our effort to enforce our laws really is. And when we do enforce our laws, our prisons do a terribly poor job of rehabilitating criminals. [See The Next Step in Criminal Justice: The End of Prisons.]

According to the National Institute of Justice, a Bureau of Justice Statistics 2005 study on recidivism found:

  • “Within three years of release, about two-thirds (67.8 percent) of released prisoners were rearrested.
  • Within five years of release, about three-quarters (76.6 percent) of released prisoners were rearrested.
  • Of those prisoners who were rearrested, more than half (56.7 percent) were arrested by the end of the first year.
  • Property offenders were the most likely to be rearrested, with 82.1 percent of released property offenders arrested for a new crime compared with 76.9 percent of drug offenders, 73.6 percent of public order offenders and 71.3 percent of violent offenders.” See Durose, Matthew R., Alexia D. Cooper, and Howard N. Snyder, Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010 (pdf, 31 pages), Bureau of Justice Statistics Special Report, April 2014, NCJ 244205.

And all this chaos does not even mention the fact that our nation spends over $200 billion per year on the Criminal Justice System alone which employs over 2.4 million people — nor does this take into account the pandemic of police brutality and related civil rights violations we see in our courts every day as outlined for example by the Black Lives Matter movement. Let’s not even mention the hundreds of billions of dollars spent by individuals and corporations each year in the USA alone in civil tort and other civil lawsuits.

So how about we just stop?

How about we rip up all the laws, deregulate everything, dismantle the courts, fire all the judges and cops, and get rid of all the lawyers, almost like Shakespeare’s dark comic characters in Henry VI suggest when imagining an ideal world?

Then what happens? Natural law, of course. Personal justice. We love this stuff in the movies. Why? Because it speaks to our inner sense of right and wrong. Somebody steals from you, you beat them up. Somebody beats you up, you beat them up harder. Somebody kills your beloved, you kill them. And all this natural justice, so to speak, goes on until people start to get the message: commit a wrong, and you should expect swift and powerful retribution. And what happens if you fail to beat the offender up in this might-makes-right system? Well, move on. Get over it, or build a better mouse-trap, so to speak. Isn’t that what we face now anyway in our so-called Justice System? People finding novel ways to get one over on another, either through physical prowess, economic might, or just plumb chicanery? How about we just call it what it is and stop ham-tying ourselves from seeking out justice on our own? I’m obviously not suggesting that we begin to break the law but rather that we formally change it to deal with realities.

Retribution, Deterrence, Isolation, and Rehabilitation: The Failed Goals of the Criminal Justice System

Our Justice System understands retribution perfectly well: it seeks to exact a weak measure of revenge on the liable or guilty, but not quite. This watered-down version of institutional revenge offered by the Justice System is deeply disconnected, poured out like molasses over years of time, and hardly satisfying to the victim and their loved ones. How satisfying is it really to see the person who murdered or raped your beloved spend time in jail and then likely be released at some point? Not very. Nor is it satisfying to see an individual, entity, or company who has wronged you in some way, say through a breach of contract, negligence, defamation of character, false accusation, or some other civil violation, either get away with it or pay some fine and get on with business as usual.

Apart from retribution (that distant and half-wit cousin of revenge), our current system also focuses on isolating and deterring criminals and pretends to try to rehabilitate them. Yet it is well known among criminal justice scholars that our prison system fails miserably to deter or rehabilitate criminals.

First, “there exists no scientific basis for expecting that a general deterrence policy, which does not involve an unacceptable interference with human rights, will do anything to control the crime rate. The sort of information needed to base a morally acceptable general policy is lacking. There is some convincing evidence in some areas that some legal sanctions have exerted deterrent effects. These findings are not, however, generalizable beyond the conditions that were investigated. Given the present state of knowledge, implementing an official deterrence policy can be no more than a shot in the dark, or a political decision to pacify “public sentiment.” See Banks, Cyndi. Criminal Justice Ethics, pages 107-8, Sage Publications, http://www.sagepub.com/sites/default/files/upm-binaries/5144_Banks_II_Proof_Chapter_5.pdf; citing Beyleveld (1979, cited in Hudson 1996: 23): Hudson, B. 1996. Understanding Justice: An Introduction to Ideas, Perspectives and Controversies in Modern Penal Theory. Buckingham, England: Open University Press. [Emphasis added.] Also See Dept. of Justice, National Institute of Justice, “Five Things About Deterrence“, https://www.ncjrs.gov/pdffiles1/nij/247350.pdf.

Secondly, as for the philosophy dedicated to isolation or incapacitation of wrong-doers, you might temporarily isolate a few criminals in prison, but all the other ones outside of prison are still very active among us. The imprisoned ones will join them soon enough with all sorts of new connections and tricks up their sleeve. Prison, after all, provides quite an education in crime and serves merely to anger criminals all the more once they rejoin a society that sought to punish them and continues to shun them. And in terms of civil rather than criminal wrong-doers – that is, the contract breakers, the defamers, the negligent, the defrauders, the false accusers, the liars – how do we incapacitate them? If we win a lawsuit or eek out some settlement award from them in negotiations, or if we seek the aid of a regulatory agency to deprive them of their licenses or to fine them for their misdeeds, what does this really do to stop this kind of behavior in society? Sure as the sun will rise, each day greets new and repeat offenders by the millions, and that is proof enough that the system is not working. Nevermind the fact that so many of the results of these civil actions may be rife with injustice: after all, who is to say that the regulatory agencies, the civil court judges, the arbitrators, or the negotiation results meted out justice? Lawyers, more than anyone, know how rarely justice actually happens. The law is a sloppy, blind fool that metes out what it calls justice with a thwack of a rusty blade.

And rehabilitation? Well, you’ve seen the recidivism statistics above, and those only relate to criminal matters. Imagine how often civil wrongs are committed and re-committed by the unscrupulous individuals and entities in society who cheat, lie, and scamper about, no matter how many times they’re fined or what have you for doing what they do. Enough then about that rehabilitation rubbish. Come now! As if sewing jeans, participating in group talks, and attending a couple high school classes in basic math and reading are going to solve the horrifying problems of mental illness, miseducation, poverty, social isolation, anger, depression, substance abuse, faulty conscience, and/or poor intelligence that plague criminals.

Natural Consequences and Revenge

The fact is that real revenge is the age-old discourager of crime. Boys learn this growing up pretty quickly: if you talk trash to a boy, you might well expect a fight to ensue. Girls have their ways of exacting revenge as well, we all know, be it a slap in the face or excoriating words that rip you up inside. This is how we learn naturally to behave ourselves. Sure, positive reinforcement has very strong merits, but let’s not kid ourselves and pretend that we’re not discouraged to talk trash to the neighborhood bully because he or she will sit on our chest and beat us to a pulp!

It’s only when society steps in to break up the fight, to prevent the fight, or to make the fight illegal — it’s in the top-down Control State’s efforts to “protect us from ourselves” and rather expose us to the deeply flawed justice system — that the Natural Consequences system of Revenge is thwarted. And when that happens, we find ourselves facing the broken Justice System: a system rife with injustice, policy failures, money politics, career politicians, thin “blue lines” covering up police brutality, prosecutorial misconduct, regulatory corruption, millions of lawsuits that result in wealthy lawyers and no real justice for either side, and the innocent accepting plea bargains because they fear the greater punishment they’ll face in a court system that is likely to ignore them.

Remember, the justice system, whether it involves criminal law or civil law, is the contemporary and relatively secular version of king-ordained laws and enforcement that was predicated upon the belief that all lives and property belong to the king, that a taking of life or property without the king’s permission is a crime against the king, and thus the king may exact revenge and punish the wrong-doer for violating the king’s rights.

Well now that we’re focused on doing away with such unnatural hierarchies with all our talk of Democracy, isn’t it time we do away with a system that has simply supplanted the self-given divine powers of kings with the self-given secular powers of judges, cops, lawyers, regulators, and politicians?

The power brokers of the justice system castigate us from on-high, most often with disastrous miscarriages of justice and with no real effective sense of revenge, rehabilitation, or isolation of wrong-doers from us good folk? Every day we hear about dirty cops, lawyers that only the rich can pay, judges who make decisions that we disagree with, and regulators who spend hundreds of billions of tax dollars to limit our basic freedoms with dubious benefits.

We’re told when we have to wash our hands, who we have to hire as our employees, who we have to allow in our businesses, how we have to treat our neighbors, how many windows we can put in our buildings, whether we can pray in schools or not, what kind of electricity we have to use and the companies we can buy it from, whether we can carry weapons, what we can write about in newspapers, what time we have to wake up for school, whether our children can walk home alone from the park or not, where we are allowed to camp and fish, where we are allowed to walk and sleep, what kind of clothing we can wear, who we can marry, how we can have sex, what we can grow in our gardens, what we can smoke or drink, how we can talk to each other, how much of our money we have to give to military spending, who we have to pick among as our leaders, and so on.

What ever happened to freedom?

Isn’t that what this was supposed to be all about? What we have done is simply created a Regulatory State – given Big Brother better surveillance techniques. Mr. Orwell was right, and we’re too self-satisfied and distracted by the glitter of the Brave New World to see that.

Isn’t it time that we simply allow natural consequences to take over and discourage us all from wronging each other?

This New York lawyer seems to think so: “NY lawyer demands ‘Game of Thrones’-style trial by combat to settle lawsuit“.

I certainly agree.

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