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when is justice no longer just?

A few days ago I posted wondering whether Troy Davis was really Troy Davis. The thinking was, since everyone changes over the course of time, I wasn’t sure that the Troy Davis who existed today was the same person who had allegedly killed Mark MacPhail. I had in the back of my mind the first season DS9 episode “Dax,” where Jadzia Dax is put on trial for a murder allegedly killed by her previous hosts. Jadzia is a Trill, and it means she has a symbiont inside her that was previously joined with another person. Kind of like half reincarnation – you have part of you that lives on from life to life, but also there is some new personality in each iteration.

When the philosophy class I teach discusses this scenario (yes, we do occasionally discuss Star Trek applications!) I ask them what exactly drives the intuition that this young woman isn’t responsible for an old man’s crimes – because if it’s just the acquisition of new memories, new character traits, that could also be said of (say) an eighty year old committed of a crime done while in university. Which raises the question: just how much time has to pass, how much does a person’s character have to change before it’s no longer just to punish them for a crime they committed. I’m not admitting Davis is guilty, but in the debate leading up to the execution I saw a lot of people asking whether he did the crime or not – if he did it, it was just to kill him, so the reasoning seemed to go. Of course we should be horrified to kill an innocent man. Of course we should want to know. But I don’t know that the situation is so simple.

Over at Facebook, my friend Wendy asked the natural question. If a cop-killer or psychopathic serial murderer or child-rapist or some other moral monster has changed enough that it’s no longer just to keep them in jail, what do we do with them? That’s a hard question to answer, but I could tell from the comments this was an issue Wendy cared about. So I wanted to give it the time and space it needed to answer that question adequately. (If you have a FB account, you can see the conversation on my wall, on 23-Sept at 8:13 AM.)

As far as I can see, there are three real reasons to put someone in jail:

  1. Retribution: Jail’s not fun. Seeing someone put in jail who has wronged you can bring some sort of comfort. At the least it seems like society’s way of saying what happened to the victims isn’t okay with the rest of us either.


  2. Character Growth: Arguably, committing a crime harms the criminal, too, because they hurt someone and then have to hide what they did afterwards. Jail (in theory!) gives criminals the opportunities to become better people.


  3. Prevention: We can’t completely fix past crimes, but we can keep known criminals by committing further crimes, by keeping them away from the situations where they could. Jails limit criminals’ access to non-criminals (except for the jailors who have superior weapons and special training).


Of course, it’s possible I overlooked some reason for putting people in jail, but if there are other options I’m not seeing it. So let’s say just for argument that these are the reasons we put people in jail. I take that to mean, if none of these reasons apply, it’s automatically unjust to lock someone up. Imprisonment is by definition a loss of liberty, so I do think you need a reason to do it.

So let’s take an example. Troy Davis is emotionally charged and I don’t want to use someone’s tragedy for my own sake, anyway. And Dax is a rather… well, weird case. Plus not everyone is really familiar with it anyway. So let’s take another case. Let’s say someone is a vicious racist. His sister was planning to marry an Afro-American, and he is so blinded by his hatred that he kills the man. There’s no insanity; he was lucid, he planned the murder out. But over the course of several decades of visitors’ day he gets to know his would-be-in-laws and has a genuine character change so he no longer hates this minority. Let's take it a step further and say he realizes that hatred based on generalizations is also wrong. Moreover his regret at having tried to kill someone leads him to get a better control over his anger, which had previously been an issue so not only does he not hate groups but he also is less likely to act on his anger – no more than any one else would be. Does it still make sense to lock this person up?

If this change is truly possible, he's no longer a danger to others, certainly no more than anyone else, so the idea of prevention doesn't apply. He also doesn't still need to become the better person we sent him to jail to be. But what about retribution? His victim's family and even his sister would be very reasonably upset and may not quite be ready for him to get out. This is one of the points Wendy raised. Why should someone who has suffered a horrific crime have to let their harmer out?

Growing up, I was taught to believe in forgiveness, in the sense that if someone hurt you, you had to move on and give up any claim to anger or judgment over them. I'm not sure how much I believe of that because I think forgiveness means something a bit different than pretending like it never happened. I tend to think that people have the right to be upset about this kind of thing. But that right doesn’t mean they have the right to keep other people in prison. You need an impartial judge, someone who isn’t overwhelmed by bias. So the fact that the victims’ families don’t want you out isn’t a good enough reason.

What is a good reason is to say that they haven’t actually served enough for their crime. But, while retribution is certainly necessary, I’m not sure what would count as just retribution. How much time would make up for someone who raped your child? Who murdered your sister, or embezzled and squandered your company’s retirement plan? I can’t think of any amount that would, or would even be proportionate. At best it is a symbolic thing, I think. I’m also reminded of Christian teaching on forgiveness – that we are supposed to forgive generously precisely because we have our own debts that could never be paid back. I have a vague memory of a parable, where someone had a debt forgiven and was blasted for throwing someone who owed him money in prison. Expecting proportional retribution feels a bit like that.

Of course we need some retribution, but I still find myself wondering: will another year, five years, whatever really make a difference if someone has been in jail for decades already? To say someone hasn’t suffered enough to make up for what they took, I don’t find that very convincing. Or charitable, or Christian, or whatever. (Not that everyone has to be Christian; but for those of us that are, this attitude does seem “off” to me.)

The question I keep coming back to, and one that Wendy raised was this: who decides someone is really rehabilitated? How do I know this ex-criminal is really ex and won’t reoffend? Wendy said these criminals are experts at fooling people, and many of them are. But they’re not supermen. I have to believe that with modern social work and psychiatry and just decades of experience in criminal justice, there’s a way to sort out the fakers from the not-fakers. Of course we have to be careful – but should we really keep people locked up on principle, because some of them might reoffend? I don’t think so.

As for Wendy’s last question – where should they live – I’d take them as my neighbors. Honestly. If they managed to fool the entire criminal justice system and are complying with parole, maybe there’s still a chance they’d reoffend and I’d get violated by them. I’m not blind to that. I just have faith in peoples’ ability to change, and really do think I’d be willing to take a risk in order to honor that.

This entry was originally posted at http://fidesquaerens.dreamwidth.org/8053.html. Please comment there using OpenID.

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