The Death of American Justice Part I: Why Retributive Justice Must End

It has become increasingly popular, especially among more progressive sections of the United States, to deride mass incarceration for its human rights implications. Undeniably, this is welcome progress for a country that now holds more than a fifth of the world’s prisoners. Yet even these moderate critiques still struggle to grasp the full magnitude of this human rights failure. And the root of that problem is simple: our justice system is modeled off the theory of retributive justice

Yet while many in the US may feel an innate impulse to avenge crimes in order to equal some cosmic scale of morality, this is a factually and logically misguided approach because it crucially fails to prioritize improving the material world. Instead, the US must rethink its criminal justice strategies so that decisions are made from a purely utilitarian basis. In other words, the US is obligated to prioritize limiting the pain and increasing the contentment of its citizens because these feelings so objectively constitute the human experience. Therefore pain imposed on criminals beyond that which is helpful must be weighted no less than the objective pain caused by the initial criminal act. An eye for an eye cannot right a wrong, it will only leave two bloody sockets and the blanket of blinding darkness. 

F. W. Pomeroy statue of Lady Justice (pixabay)

The retributive approach to justice is of course far from a US invention. Shown by scientists to be a natural biological reaction, from the Gunga Rao method of capital punishment in Ancient India to the Ancient Persian’s Scaphism, brutal vengeance has seemed to know few bounds. But even as western civilization breached the gap of enlightenment in the 1600s, these ideals of vengeance remained. Some philosophers like John Locke and especially Cesare Beccaria (the father of modern criminal justice) countered with progressive faith in logical utilitarianism. However, still others like Kant and Hagel maintained retributive justice was a necessary “infringement of the infringement.” In essence, this argument infers a balancing of some unstated Karmic scale. 

While American ideals of political philosophy owed more to nobody than Locke, and criminal justice to nobody more than Beccaria it appears Kant and Hagel mostly won out. Despite the substantially progressive justice reform carried out by the Founding Fathers, and later Christian and Progressive movements, American criminal justice remained from its inception notably retributive. Then in the 1970s, this stem of retributive justice blossomed to its fullest and most horrifying extent. Rehabilitation-focused justice had proven a largely substantial failure and with violent crime rates rising, leaders like Nixon and Reagan responded in force. Their legacy, and the legacy of those who followed, created a structure of mass incarceration based on the ideals of “new punitiveness”with infamous elements like mandatory minimums, three-strike laws, and structurally overzealous prosecutors driving this inhumane train of abuse.

 The result of these reforms has been, as Justice Antonin Scalia put it, a system of “Deserved punishment for crime.” And according to scholars this is poignantly accurate: as just 10-15% of the decrease in crime attributed to these harsh policies it’s widely believed that “punishment … is now acknowledged to be an inherently retributive practice.” While not solely an American moral failing, this historical progression has led us to become unique among developed countries in our emphasis on retribution. Indeed in 2018, a study found that just 19% of Americans thought the criminal courts in their area were too harsh. As a result, cruel systems of punishment like solitary confinement and dangerous prisons are commonplace, harmfully little remorse or help is provided for recovering criminals, and the US now holds historically high numbers of inmates for historically high prison terms.

 It’s easy to dismiss the humanity of criminals. After all they’re the villains–the ones who flippantly choose to cheat, steal, rape, murder. But nevertheless the United States Declaration of Independence promises “life, liberty, and the pursuit of happiness” as a fundamental right. And despite our best efforts to see them otherwise, criminals are still people. Living and breathing and feeling under the lightly bristling stars and stripes. To them pain is just as potent and torturous, and the pleasure of life, liberty, and the pursuit of happiness just as profound, as with any free man. 

And therein lies the core travesty of this system. The problem is not that people are punished to protect the state and its inhabitants–as John Locke argues, you must give up some rights to protect the state. But when pain is sought for pain’s sake–in a secular society no-less which has no business engaging with karmic or divine justice–then you are breaching the natural laws of man. The goal of humanity and specifically a society, as the US itself posits, should be the happiness and security of every person possible. Therefore with so many people needlessly trapped in the salivating jaws of vengeance, in terms of total avoidable agony perpetrated it’s arguably the single worst human rights violation in our nation’s history. 

American flag behind barbed wire fence (Teenzone)

But standing in front of this clear logic, blocking the light, is the core faith in deserved punishment. As retributive justice is built off the idea of delivering deserved pain, it’s imperative to comprehensively expose this myth. Barring a more extensive argument concerning the nature of free will, it’s at the very least safe to point out that science has proven a wide variety of uncontrollable factors–genetic, environmental, cultural, and experiential–are causally linked to criminal behavior. In other words, it’s a convenient American lie to place blame for one’s mistakes solely on the individual. Furthermore, those actions will say less and less about you as the months flow by. How many people reading this honestly see their present self in actions 10 years ago? 5? 1? A month ago? Studies have backed this up concerning criminal behavior as well, for after the age of 25 and especially into one’s 40’s even hardened criminals commit exponentially fewer crimes on average. 

Australian crime rates by age

Yet even if one were to be fully morally responsible, there’s little logic informing the need for them to be proportionally punished. In the 2008 Supreme Court verdict on Kennedy vs. Louisiana, Justice Kennedy argued for the majority opinion that “the basic ‘precept of justice that punishment for [a] crime should be graduated and proportioned to [the] offense.’ in an attempt to explain the 8th amendment. But what is the connection between crime and “equal” payback and why is it so deserved? For instance take the case of Oakland native Casey Turner, a 15-year-old kid from a rough neighborhood who was convicted of 2nd-degree murder after an argument over a girl got out of hand. From a logical perspective he’s both a product of his environment and unlikely to be a danger in his Golden years, so how does a lifetime behind bars equate to or rectify the distant memory of drying blood and a single childhood mistake?

None of this sentiment is particularly revolutionary beneath the surface (after all we’re taught in pre-schools it’s not okay to hit back). The problem is that it strikes too close to home for many to see clearly. 30% of American households have a crime committed against them in any given year, so if humans are truly genetically wired to seek revenge, and our justice system gives them a democratic tool from which to achieve that, how many people are going to calmly ponder morality. Even many of history’s greatest philosophers found themselves bewitched by this mentality. When Kant talks about the necessity of retributive justice he takes it as a given, for instance by asserting the tenet that “Whoever has committed Murder must die.” Nowhere does he explain what the tangible benefits are through that death nor why it is a matter of “must”, solely that this is a natural imperative for moral justice. Without a strong societal baseline to perch ourselves upon–something that can only be achieved through laws and societal reform–America has let itself become like Kant. We are defined by the worst of our nature and like petulant toddlers, we exist unable to grasp the magnitude of our actions.

Yet, the response to this fault is not some 21st-century realization. Cesare Beccaria himself had it hundreds of years ago: base criminal justice on the logical approach of utilitarian principles. To Beccaria anything that “exceeds [practically helpful justice] is abuse, not justice; it is a matter of fact, not of right.” What constitutes helpful criminal policies will, of course, be a matter of debate and that’s fine–the most effective policy seldom is marked by a flashing neon sign. But by rejecting retribution in favor of practical results, we’ll at least be contextualizing our search for justice in the frame of the right question. Because as of today we who clamber for revenge are far worse on mass than any one felon or any one institution in American history. We are the criminals. We are the ones who stand forever on guard, rapaciously willing torturers, opposed on principle to the wellbeing of America.