“At his best, man is the noblest of all animals; separated from law and justice he is the worst.”
A few years back a tragic traffic accident occurred in the Netherlands that sparked a nationwide debate on the justice system. It made me ponder about various questions that lingered in my mind. What truly makes a sentence fair and just and how can we improve the justice system in western society?
In May 2013 a driver from Poland was cruising along an 80km/h road and lost control of his steering wheel during a minor turn. His car spun out of control and slid across the road towards the bicycle lane and instantly killed a three-year-old girl and her two grandparents. In 2014 the court decided upon the case. Although multiple eyewitnesses reported the car going 120 km/h the court was not convinced of the fact the driver was going too fast. In addition, it was also confirmed the driver did not use any substances that could have impaired his driving skills. A video of the final verdict went viral. The judge sentenced the driver to 120 hours of community service and a heartbreaking moment later one can hear the father of the three-year-old girl scream out in agony as he throws a courthouse chair towards the sentencing judge. One can only imagine the horror he went through after losing both his parents and his daughter, and after all that he still has to accept the fact the murderer essentially goes free unpunished.
The only instinctive reaction possible with regards to the story is one of injustice and it makes one think about what makes a sentence fair and just.
What is justice?
In an attempt to look at the justice system in a rational manner one must first ask why we have a justice system in the first place. The goal for the justice system should be to provide an optimal amount of opportunity for welfare for all. The goal of society as a whole has always been banding together and achieving an amount of welfare that is impossible to achieve alone. This goal cannot be reached without a fair justice system. Optimal welfare cannot be provided to the society from the hands of a few powerful authoritarian figures because of the same reason why ants can make communism work but humans can’t; we are, by nature, individualistic beings that care mostly for ourselves and too much power will inevitably corrupt the mighty. So the objective of optimal welfare needs to be put in the hands of all individual members of a society. The justice system provides a foundation for this framework.
A good justice system provides an optimal amount of opportunity for all. Since we cannot determine the output of a member in society before-hand we have to provide each member in society with the rights to prove their worth to society. The only way to do this is to provide an equal amount of opportunity for all. In short, good justice means equality.
For this idea of equal opportunity to work there are two questions that must be answered first:
Are we all equal before the law? Why should a well-functioning member of society who has proven to provide for society be treated the same as a beggar who does nothing for society? Everyone should be treated equally because of human nature. If a society starts making laws that treat people differently based on merit or birth status equality – and in turn, freedom – is in peril. In fact, the people who are responsible for creating the laws will be corrupted by the power and the society will slowly devolve into dictatorship.
Are all innocent before proven guilty? What happens if we have evidence that someone is about to perform an unbalancing deed? Why don’t we lock this person up for the good of society before the crime is committed? Once again, this is difficult to prove but easy to abuse by those in power. The medieval times experimented with such witch hunts and it did not improve society. Only an omniscient Artificial Intelligence or All-Powerful-God would be able to administrate such a system. We are but human, and flawed.
So how can we optimally administrate justice?
So what happens if a member of society makes choices that disturb this equality of opportunity? As a society, we have experimented (and failed) with a number of possible solutions for returning society to balance. The most effective way we discovered so far is punishment for those that disturb the peace. One could argue another (similar) path to take is to provide benefits for those that do not disturb the peace, but the framing effect proves that punishment is more effective to program our behavior. The goal of punishment is to return society to equality; The deterrence that is provided is only an excellent side effect.
The punishment needs to be proportional though. If a thief steals a loaf of bread from a market stall, is balance restored when his hand gets cut off? No, the punishment is completely out of proportion. The loss of a loaf of bread – and the trouble of catching the thief – does not equal the loss of a hand. A better way of returning to balance would be if the thief had to provide the market stall with two loafs of bread as payback.
Is punishment enough?
Is punishment really restoring equality of opportunity though? What if the thief had no money and no skill to bake bread and was unable to reimburse the bakery? He would have to receive some other form of appropriate punishment like a proportional amount of time in jail. Although the thief has been brought to balance by the punishment, the baker still has financial losses. This means that because of circumstances out of his control, he now has less opportunity for welfare compared to other members of society (excluding the thief). The only appropriate way to return balance to society would be for all members of this society as a whole to reimburse the damage the baker suffered as a result of the incident.
Let us return to the tragic story in the first paragraph. No matter the punishment that the driver would have received – be it imprisonment, torture or the death penalty -, it would not have restored balance to society. The remaining victim – the father – will suffer for the rest of his life due to the loss of both his parents and daughter. He has in no possible way an equal opportunity compared to the rest of society. I’d argue that justice would not only consist of an appropriate punishment for the driver – whatever that may be -, but the father should also receive aid from society in order to return to balance.
How to handle self-defence?
Another example. Imagine a thief. The thief steals from a jewelry shop three times in a year, not only causing significant financial damages to the merchant but also traumatizing them for a potential lifetime. Unable to cope with recurring robberies, the merchant acquires a lethal rifle with the goal of protection. The fourth time, he thinks, he will be prepared. It does not take long for the merchant to be confronted with this fourth time. During this robbery, his wife is held at gunpoint by the robber and the merchant pulls out his newly acquired rifle and murders the thief.
This is not a fictional example but another case from the Netherlands. In this case, the justice system was unable to decide on punishment and the merchant was convicted but received no punishment. Is it fair though? I struggle to find the answer. Does the emotional trauma of involuntarily being put in such a situation match up against the loss of a life? I’d say it does not. So what would restore the balance? What do you think? Was the decision appropriate and if not, what would have been an appropriate decision?