Just punishment
A proposal for reforming the criminal justice system to a retributive model
This is the fifth and final installment in a series on retributive justice. The first installment broadly described the role of retribution in criminal law. The second installment discussed the evolutionary rationale for retributive theory. The third installment continued with the evolutionary development of third-party punishment. The fourth installment applied retributive theory to drug crimes. This piece is a proposal for reforming the criminal justice system to a more retributive model.
To make the case for reforming our criminal justice system to a retributive model, we must begin with defining the system’s core function. The core function of the criminal justice system is to punish. Because this sounds harsh, some people are uneasy with it. However, I spent time writing about the evolutionary foundation of retributive theory punishment in this series to elucidate this core function. You can review those pieces here and here. Punishment is embedded in human nature, and it is foundational to the development of civilized societies. Like it or not, punishment is central to criminal justice.
Our current criminal justice system, though, tilts heavily toward rehabilitation. The rehabilitative criminal justice model focuses on delivering treatment and does so for the explicit purpose of changing the behavior of the offender. In contrast, the retributive model delivers punishment solely because the offender broke the law. It exacts a status injury on the offender signaling the disapproval of the group. The punishment is designed to be proportionate to the crime not tailored to the offender. While behavior change may be a happy externality of the retributive model, it is not the aim.
The two models are in sharp conflict, and the rehabilitative model pulls the system away from its core function. It is very difficult for an organization to perform well on tasks outside of its core function. It is also difficult to do well on more than one function at a time.
To illustrate, by embracing rehabilitation, our criminal justice system attempts to provide social work and psychological and medical services. To state the obvious, lawyers are not trained or suited to do these things. Court bureaucracies have ballooned to include large probation departments, community corrections programs, pre-trial services programs, and problem-solving courts. On these tasks, judges, prosecutors, and defense attorneys spend less time analyzing the law and arguing in court, tasks they are good at and only they can do, and more time managing social work-like case plans.
The current model is also financially inefficient. Lawyers are expensive. Many of the roles judges, prosecutors and defense attorneys have taken on can be done by social workers, case managers, therapists or psychologists, who are much cheaper than lawyers. You can hire four social workers for the cost of one lawyer.
In addition, we inefficiently and expensively use jail and prison space. In the rehabilitative model, sentences must be long enough to incentivize treatment, as well as long enough for the treatment regimen to be completed. This frequently leads to longer sentences for offenders when they fail at the treatment programs. In the retributive mode, the incentives are reversed. Punishment must be narrowly tailored and proportionate to the offense. The result is shorter incarceration periods for most offenses, which would be more cost effective.
Narrowing the criminal justice system to its core function does not mean that rehabilitation is not important. It does mean, however, that those services would need to be provided by someone else. The added benefit is that someone else would do a better job of providing them.
Removing rehabilitation from the criminal justice system would decrease the use of local jail treatment programs, pre-trial services operations, problem-solving courts, and probation departments. Stripping these things from the current system would free up vast resources.
While I do not have hard numbers, it is safe to say that tens of millions of dollars are spent in Indiana every year on court run rehabilitation programs and jail facilities. That is enough money to have a substance abuse and mental health treatment facility in every community. Under a retributive model, the criminal justice system would not partner with such a facility. It would not supervise treatment operations. It would simply punish the offender for his actions, then refer him to the treatment center.
A treatment center like this would be accessible. People could voluntarily walk into one for help. It should be free to those who cannot afford it. Further, Indiana already has robust civil commitment statutes that could continue to be used. Police or concerned family members could still petition the court for involuntary commitment. By freeing up resources in the criminal justice system to fund treatment facilities, we could actually create adequate bed space to meet the demand. Mental health and substance abuse patients would interact with doctors, psychiatrists, psychologists, therapists and social workers, instead of judges, prosecutors, defense lawyers and corrections officers. The lawyers would practice law, the doctors would practice medicine, and the social workers would practice social work.
Some may object to this approach by arguing that it requires the coercive intervention of the criminal justice system to get people to go to treatment. I disagree. I believe that conditioning treatment on the threat of punishment corrodes the human dignity and personal agency necessary for change. Also, the two processes undermine one another. A judge tells an offender that if he fails at treatment he will go to jail. Then, the offender goes to treatment where he is told that relapse is a part of recovery. The core functions are contradictory. Further, there is no evidence that the threat of jail improves treatment outcomes. And finally, if coercion is necessary, that power may be applied through the civil commitment statutes without involving the criminal justice system.
Handling crime and rehabilitation is hard. The criminal justice system should not be attempting both at the same time. We would be better off separating the treatment system from the criminal system. This would allow the criminal justice system to focus on its core function of delivering punishment. The closer we can get to this retributive model in our criminal policies, the better outcomes we will see for our communities.