Some Remarks on Justice

Presented at The North Texas Church of Freethought, February 4, 1996

A few items of interest:

In Islamabad, Turkey this year, a fundamentalist group warned that they would smash the cars of anyone celebrating and/or having fun by ringing in the new year. So how did the Turkish authorities react to this threat? They officially banned all New Year celebrations.

Orthodox Jewish tradition has forbidden organ donation in order to maintain the body intact — they should tell the worms that, eh? — for resurrection when the Messiah comes. Well, now that's changed. Now they'll allow organ donation — but only to other Jews.

Scott Hone, age 23, of Provo, Utah — has been charged with attempting to murder his wife. It seems a fight broke out during a family prayer session.

[The above three items appeared in The American Rationalist Nov/Dec 1995, page 60]

It's a strange justice that the 16th Century Church meted out to people like Giordano Bruno. The only breaks they gave him were literal time-outs in the hope that he'd recant. Their justice was tempered by a mercy that it was up to you to accept or not. A mercy that was more like extortion, and very much resembling their peculiar theology.

Well, but rationally speaking, I think most of us agree about the essentials of good behavior: treating others as you would like to be treated and so forth. Human beings discovered a long long time ago that you needed to apply such a principle somewhere in order to have a workable society. And, of course, it makes rational sense. We had an excellent program last year that subject: good and evil — morality — the real kind, that is — and we'll be revisiting that weighty issue again sometime this year.

But what happens when someone doesn't do what's right? What happens when someone kidnaps a little girl, kills her, and dumps her body in a creek, leaving it up to those who cared about her — and all the rest of us, to some degree — to pick up the pieces? I'd hate to be the guy who becomes a serious suspect in such a crime. I'm sure you saw them as I did: the newspaper letters to the editor screaming for his blood, even though they don't know who he is. How would you like to own a black pick-up truck right now? Some have said that even a trial is "too good" for him — forget about whether he really did it or not — just kill him, they say. Some of us here today might even be for that - after a trial. Though some of us might be of the opinion that our criminal justice system itself is more often criminal than just.

What about when the criminal is 10 years old? I'm thinking of the boy who dropped a younger boy — 5 years-old — out the window of the building in Chicago because he wouldn't steal candy for him. What should we do with him? Should we fry a 10-year old?

Anybody who thinks they know the certain answers to such questions hasn't been thinking very hard about them.

I think it was Ayn Rand who said that "morality ends at the point of a gun." What she meant is that once someone has done something wrong, you really can't talk very well about what the right thing to do is. It's too late.

Whether it's just a simple purse-snatching — even if the stolen item is immediately recovered — and even if it's just an attempted crime — or whether it's a ghastly crime that shocks us deeply, wrongdoing has unalterable effects on everyone who comes into contact with it.

Because when people hurt others, we're reminded of how vulnerable we are. Because we can't avoid people very well. We realize that we're not as safe as we'd like to think. Because they're bad people out there. And most of the time you can't tell who they are just by looking at them.

Wrongdoing also affects those who are guilty of it, and I don't just mean the risk or reality of being arrested or jailed. In the Bible, Jeremiah asks his god (Jer 12:1): "Wherefore doth the way of the wicked prosper? wherefore are all they happy that deal very treacherously?" But I think that's totally wrong. There may be wicked people who have high incomes, nice houses, and health and everything else that people want. And I'm sure they enjoy them. But they don't have a good heart, that's for sure. Maybe you can't see it just by looking at them, but they're the moral equivalent of someone in a persistent vegetative state. There are things they can't do, feelings and an appreciation for life that they can never have, simply because of how they've corrupted themselves by doing wrong.

I really believe that there's something far worse than being the victim of an injustice, and that is to be the one who inflicts it on others.

That's why it's troubling — and it should be troubling — to consider the question of what to do with those who have committed crimes when you catch them. Just exactly what is this JUSTICE that we say we want to bring criminals to? Well, without spending all day on the subject, it seems to me that there are basically X ideas jumbled together here:

  1. First there's Retributive Justice, or punishment. An "eye for an eye," because the criminal "deserves" it. But this sort of justice isn't justice at all. It's just indulging the anger that we feel when we're adversely affected by the actions of bad people. A lot of people who support the death penalty do so because they believe in a retributive theory of justice. But it's a very expensive form of emotional gratification. I for one also worry about a standard of proof — "beyond a reasonable doubt" — that apparently isn't good enough to keep every innocent person off of death row. Even the people in charge of the system seem to be somewhat lacking in resolve. There have been almost no executions of women, for example, which isn't adequately explained by the smaller proportion of women who are tried for capital crimes.
  2. Then there's the idea of restitution. This makes a lot of sense and for two reasons. One is that it might actually help to lessen the burden of crime on the victim, both materially and psychologically. The other reason is that criminals doing something aimed at giving their victims something back of what was taken by force from them could have a rehabilitative effect. Doing bad things is what makes bad people the way they are — practice makes perfect, as it's said — and so perhaps when criminals are made to do good things instead there is the possibility that they will come to appreciate the benefits — chiefly self-respect — of good behavior. Or maybe not. Who knows.
  3. Many educated and enlightened people say that our focus should be on rehabilitating criminals. The philosopher Bertrand Russell seems to have been one of these kind-hearted people since I recall reading his comparison of a criminal to a broken-down automobile. In both cases, he said, we shouldn't get angry, but just fix the problem. Usually those who talk about rehabilitation mean teaching convicts to read, getting them through high school and/or college, and so forth. But I wish these broad-minded people would come up with some evidence for what they're claiming. I have a hard time understanding how Amber's killer, or Susan Smith, the lady who drove her two boys into a lake and then told everybody that some black guy did it, or this 10-year-old Chicago boy — how are they going to be turned into model citizens by learning to read or hanging a diploma on their wall? And how do you rehabilitate a criminal who's already got a college degree?

    I like the idea of rehabilitation. I really do. But I doubt that we know how to do such things. I can't see someone like Amber's killer being rehabilitated without undergoing some kind of science fiction mind-wipe, some kind of complete persona replacement, a complete replacement of Bertrand Russell's car's engine, driveshaft, and transmission. I hope someone is seriously studying such things. There was a conference on genetics and criminal behavior held out East not long ago and the thing was basically shut down by protesters.

  4. Finally, there's the idea of just protecting society from bad people by separating them from the rest of us. This is one that everybody seems to agree on. Lock them up and throw away the key. Or at least don't let them out until and unless they're definitely not a threat to society. This makes a lot of sense because a) it leaves open the possibility of restitution, and b) it leaves open the possibility of rehabilitation, whatever that is, c) it leaves open the possibility of immediate release if it's discovered that someone was wrongly convicted of a crime, and, most importantly, in my view, d) it leaves open the possibility of studying the criminal. That's the only way we're ever going to understand what goes wrong in people's heads when they decide to do bad things. I'd even be for Clockwork Orange type experiments. What an advance it would be if people could be vaccinated against violent criminal behavior! Just leave Beethoven out of it.

I know things are more complicated than this. Everything is always more complicated than anyone thinks. But in this case, I think, the complexity — which someone once said is the "wisdom of fools" — comes down to the fact that we just can't know what real justice is in the sense of knowing what to do about human imperfections. And then there's the difficulty that we all have our faults, our quick tempers, our tendency to blame others, and so on. If there were a Law of Justice that worked just like the Law of Gravity, wouldn't it, too, apply to small masses as well as large?

That's where this strange thing called mercy comes in. If the right thing to do when someone steals something is to cut off their hand, then, by golly, that's what you should do to every single person who steals. So are you going to cut off your friend's hand because they borrowed your pen without asking?

If there were a justice that was really just, mercy would be unnecessary. Because mercy is when justice is withheld, when someone who "deserves" to be punished, or forced to make restitution, or locked up and made to study calculus is let off with a slap on the wrist or less. Why? It's a strange thing, and perhaps an encouraging thing in a world where people do terrible things to one another, that human beings can nevertheless, at least sometimes, have sympathy for the criminal. No doubt some of it is soft-headed and irrational. But the sensible part of it is that there are just too many ways of making horrible mistakes in meting out "justice."

And, sometimes, there are too many ways of making mistakes, period.

By the way, if there were an omnipotent and omniscient being — forget omnibeneficence, since that would negate any need for a system of dealing with evil because there wouldn't be any — he, she, or it could certainly devise and enforce a perfect justice. A justice that would need no mercy to temper it, because it would be right to begin with. Just another little difficulty with the idea of a deity who is both just and merciful.

Those who believe in such things have been known to accuse freethinkers — humanists — with believing in the perfectibility of human beings. I don't think we do, though, any more than the person who knows we can count to higher and higher numbers believes that you can be "done" by reaching infinity. We're not the ones who believe that it is possible to be perfect — whatever that means.

But it is a fact that there is something I can do, and you can do, and every other human being can do that no all-everything deity can do. We can learn, we can grow, we can fall down and get up again. And we can take note of the people who have done things, horrible things, and deal with them in a way that doesn't add to the injustices that they've already inflicted.

Morality may end at the point of a gun, but the obligation to conform our actions — what we do about it — to facts and reason, does not end.

Thank you and Good Morning.

© 1996 by Tim Gorski