It's the Law!! (part 2)

In the United States we use a strategy of protecting society through a criminal law system that has, as its end goal, the punishment of lawbreakers. It’s a very appealing concept, but doesn't seem to work very well. Typically, a lawbreaker gets arrested, tried and punished. The punishment is nearly always a monetary fine, community service or some time in jail. Occasionally a part of the punishment includes victim restitution or required attendance at a series of classes -- Anger Management for example. A judgement that deviates from this assortment of punishments would likely be considered novel and would be the subject of news reports. The system seems to spawn recidivism and actually appears to compound criminal activity rather than abate it. We need a change.

I might suggest that the goal of our criminal system could be improved. The very end point of our system might be the reason the system has gotten itself ‘wrapped around the axle’ – so to speak. Think about this for a minute: A thief is arrested, tried, found guilty and punished for his misdeed. He is imprisoned with other thieves and befriends them. Through his new found friends he deepens his understanding of the craft. He completes his time of ‘punishment’ and is released back into society. This thief now has new friends (a support group, if you will), knows more about thievery and the legal system, and is bitter toward a society that thought to punish him. When he fails at becoming a good citizen, he returns to his old trade, but is now more difficult to catch because he is better trained and has better social connections. If he is eventually caught again he will be better able to defend himself in court and more likely to avoid further punishment. (Incidentally, the court system does not appear to be a difficult game to play - just exasperating. The cardinal rule to remember is that the system is so focussed on every jot and tittle of the law that it is oblivious to its purpose.)

I think we can do better than such a revolving door legal system. Suppose that instead of an end goal of punishment-for-wrongdoing our legal system had a goal of protecting society by changing lawbreakers. Think about this for a minute: A thief is arrested, tried, found guilty and matriculated into an institution which has the goal of changing his behavior. Through a program of intense training, possibly augmented by punishment and reward the scofflaw is led through a series of lessons designed to train him in citizenship, assure that he has a marketable skill, build his character and bring him to know he can 'fit-in' and be a useful member of society. When it is felt the goal has been reached, he is returned to society as a productive citizen. Perhaps it sounds a bit Pollyanna-ish but, should he revert to his previous lifestyle his training could be repeated. Further recidivism would, depending on the nature and severity of his infraction and after reasonable attempts at correction (perhaps as few as one), result in his acquiring the label of incorrigible. At that point it would be assumed that he was incapable of living a civil life and would simply be removed from society and detained at the state’s expense in what the French have charmingly referred to as an oubliette – a place of forgetting. The maintenance of such an oubliette would be commensurate with a minimum level of humane treatment and make no pretensions toward rehabilitation.

Such a subtle change in the end goal of our legal system (utterly ridding it of an inappropriate use of punishment) should protect our citizens far better than the current effort and with lowered expense. It should follow that the load on our criminal and civil courts would fall substantially, resulting in more time available for each legal case thereby improving their ability to regulate our citizens.

An airplane will stop flying and fall from the sky if it stalls. Without thinking through the consequences of his actions, an inexperienced pilot will attempt to hold the nose of his plane up when it stalls – to keep it in the air. The proper response is to push the nose toward the ground. Such a move is not intuitive, but it gets the plane flying again and allows for control and recovery. The intuitive response means doom. The reasoned response means safety.

The notion of punishment as the end goal is so deeply entwined in our social fabric that it may be too great a task to tease it out. Sadly, I fear that such a change as I have proposed in our legal system runs counter to the intuitive response. Just as the untrained pilot reacts by pulling back on the reigns of his horse, so will, I fear, our society continue its unreasoned response and continue along its path utterly certain that it is doing the right thing.