Who Are You Helping, and Who Are You Hurting?

 Posted on June 28, 2007 in Uncategorized

Today an anonymous prosecutorial commentor wrote, in the comments to my Support the Troops - Acquit a Vet post (and directly in response to my saying, "I'm not worried about people losing faith in the criminal justice system. Anyone who has faith in the criminal "justice" system is either on the government teat or oblivious":

Do you not accept or recgonize views alternative to your own? It's yoru blog, so of course you can say what you want. Like my Dad always says "it's America"Let's say you have a violent offender who has robbed and seriously injured someone to the point they had to go to the hospital or someone who has violently raped another person. Extreme examples, but bear with me. In your world view what would you like to see happen? You have victims who want justice, retribution, what have you. Do we go back to the Old West and round up a Posse to go after the offender? Do we resort to vigilantism and let things work themselves out? We have laws going back to Moses on the Mount, that state how we should interact with one another. Assuming you think that laws are a good thing, should they not be enforced? Understand I'm not talking about drugs, DWI, etc. I'm talking about my examples.Those victims deserve a fourum and the right to be heard. They have an expectation that the person who wronged them will be held accountable. That doesn't make them oblivious. Whether the jury finds them guilty or aquits, they're still doing their duty, it's still Justice.

I recognize and accept that some people have faith in the criminal "justice" system. But they're mistaken. It's a crappy system that's designed to cause people pain.

Do you suppose that those victims who want retribution (their idea of justice) feel that justice has been delivered when (because of police or prosecutorial error, for example) their attackers go free? The criminal "justice" system is not there to provide a forum - or anything else - to the victims. Witness how often the wishes of complaining witnesses are disregarded by proescutors. If it happens that the criminal "justice" system satisfies some need of some human being, it's mere coincidence. Anyone who expects it to do so or has faith that it will doesn't understand the system.

Clarence Darrow said:

We have heard talk of justice. Is there anybody who knows what justice is? No one on earth can measure out justice. Can you look at any man and say what he deserves - whether he deserves hanging by the neck until dead or life in prison or thirty days in prison or a medal? The human mind is blind to all who seek to look in at it and to most of us that look out from it. Justice is something that man knows little about. He may know something about charity and understanding and mercy, and he should cling to those as far as he can.

I suppose that if I had to be a prosecutor I would have to believe that people can know what justice is. I would further have to believe, hubristically, that I knew who should be "held accountable" for what transgressions, and how. The prosecutorial venture would seem entirely hollow otherwise.

But - thank God I'm a defender - I know that Darrow was right.

In a perfect world, I would want to see a criminal justice system based on restoration - making whole the people who are hurt - rather than retribution. In such a system I could comfortably operate on either side, working to heal victims as well as offenders. But that's not the system we have.

On Monday Scott Henson (Grits for Breakfast) wrote about Howard Zehr's talk to the Restorative Justice Conference in Kerrville. It's a thought-provoking post. The highlight that is relevant to this discussion follows:

In many ways, said Zehr, the current criminal justice system denies victims almost everything they need. He quoted Judy Herman saying that if you set out to design a system to create post traumatic stress for a victim, you couldn't do better than a court of law. This theme was repeated in other conference events so far – that the court process places unfair demands on victims that exacerbate their emotional response to crime instead of help them.

So not only does the criminal "justice" system cause pain to the people it's designed to hurt (the accused) but it also causes pain to the people for whose sake you would cause the pain. Anyone who rationalizes putting people in prison because it somehow helps the victims is deceiving himself.

Technorati Tags: criminal defense, philosophy, prosecutors

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