by Thomas R. Wells
Judicial punishment is the curious idea that individuals deserve to be punished by the state for breaking its laws. Intellectually this is rather counter-intuitive. If crime is so terrible because it is a social trauma then deliberately hurting more people would seem to amplify that trauma rather than treat it. There are intellectual arguments for retributive punishment of course, many of them rather ingenious, but they have the look of post hoc rationalisations for a brute social fact: we just like the idea of hurting bad people – even if these days their suffering is the mental torture of prison rather than the rack.
The modern criminal justice system – bloated and terroristic – is the product of government expansionism combined with this societal lust for vengeance.
II
In theory there are great advantages to having the state administer criminal justice – i.e. as a prosecutor and punisher rather than merely as a judge – such as ensuring some baseline of fair treatment for less powerful victims and defendants. However, these are not guaranteed. For example, it is a well-studied fact that young African-American men, a minority stereotyped as especially liable to criminality, are more likely to be stopped by government agents, arrested, charged with a higher crime, denied bail, found guilty, and sentenced to a harsher punishment.
This is not the only way that the state's takeover of criminal justice goes awry. By converting crime from a relationship between victim and perpetrator to a relationship between a criminal and the state it has justified a vast expansion of what is criminalised and of the severity of punishment. The problem of crimes such as rape are conceived not primarily as harms to specific people that need to be redressed, but as transgressions of laws that represent the will of society. All crimes are now offenses against the dignity of Society, as represented by the government. The democratic requirement that justice must be seen to be done means that the moral indignation of society as a whole drives the government's punishment decisions, not the interests or wishes of actual victims of crimes.
Locking millions of people into squalid little boxes for years on end doesn't make much sense if you take away its real motivation: the naked desire to make society's enemies suffer. Besides being a very inefficient – socially expensive – means of hurting people (something I've discussed elsewhere), the mental suffering of prison does little to advance the supposed moral goals of criminal justice.
