Friday, November 30, 2012

Mercy, Revenge, Victims' Rights, and Restorative Justice

Mercy, Revenge, Victims' Rights, and Restorative Justice

Preamble:
This is my proto-term paper for what has been a life-changing seminar I took this semester on retribution and punishment.  The paper needs to be 'academicized' (sources cited, address objections in the literature, given a half-coherent organizational structure, etc..) but I wanted to get my thoughts out first.  Also, probably for the first time in a long time, I actually stand behind what I'm writing.  I think what I'm saying is at least in the direction of truth...if there is such a thing.

A couple more notes before you read: I haven't fully developed a lot of the ideas.  They are a work in progress--hopefully to be fleshed out by the time I hand in the final paper!  Particularly messy is the section on Mercy vs Revenge.  It's a little scattered for now because as I wrote it I realized that the situation was more complex than I had originally anticipated (as usual in philosophy).  You're welcome skip over it.

Also, there is one section and one important objection I haven't written yet but if I include any more in this one post, it's unlikely to be read.

Introduction:
I want to begin with two simple unqualified ideas: (1) Justice must be felt and (2) mercy is preferable to revenge.  I will begin with the first.  What is Justice?  I don't think it can be defined.  It means different things to different people, and since Socrates there has not been any consensus on any one definition.  But I do know that justice must be felt.  Justice is not the rote application of rules, procedures, and sentencing guidelines.   We can imagine cases--nay, there are cases--where a judge applies all the procedure of justice perfectly, yet the majority of people agree that justice was not done.   Justice must be felt.

The obvious objection is that our emotions are fallible.  In fact, they are most likely to lead our judgments astray in cases where they are strongest.  The criminal law is a paradigm example since the overlap between law and morality is often close.  It is natural to have strong emotions where grave moral transgressions occur.  The response isn't simply attributable to a breach of the law.  Few people get emotional about transgressions of municipal by-laws; however, where the perceived moral law and positive law overlap, emotional reactions are heightened. 

So how to deal with the skeptic (and empirical psychology) who says, in cases where emotions run high, our capacity to reason is compromised?  We must begin with a general claim.  Essentially, the argument can be distilled to a genetic fallacy: this is the argument that since the source of our beliefs is unreliable or not "truth apt" we ought to dismiss the beliefs themselves.   Why is the argument against judgments based in emotion an instance of the genetic fallacy?

There are two reasons.  The first is that for the argument to be valid, it has to be shown that emotions reliably produce false beliefs at a rate greater than chance.  But this claim is too strong.  Surely emotion-based judgments also produce true beliefs.  If we accept this then we need to assess the validity of the belief, not based on its source but on its own merit.

The second is that we need to distinguish between knee-jerk and deliberative emotion-based judgments.  The critic is right to suggest that judgments made "in the heat of the moment" are often suspect.  But this is not the class of emotion-based judgments I'm referring to.  From the occurrence of a criminal act to the sentencing stage months or even years can pass.  During this intervening time, the victim and community will have enough time to deliberate fully on what type of punishment would constitute justice.

There is still an objection.  In the court room, when a victim or victim's family comes face to face with the offender, emotions will run high thereby reviving the 'clouded judgment' argument.  This is a fair objection, for it may be that after sentencing,, returning to their state of emotional equilibrium the victim will think otherwise of the unduly harsh punishment they called for.

There is a further objection still.  Supposing the victim is a particularly vengeful individual.  This is their nature and the only way they will feel that justice is done is if the offender receives an unduly harsh punishment.  If my argument is that justice must be felt by all, then my theory must allow unduly harsh punishment.

Justifiable reasons
But this is not the end of my theory.  We need something to counter-balance emotions when they are momentarily strong.  For, it may not be only the offender who demands unduly harsh justice, but also a powerful portion of the community.  Certainly, there must be some safeguard against the 'mob mentality'.  Here I want to bring in a theory of  reasons and justification.  I'm drawing on Scanlon, Parfit, and Lyons.  The idea is that judgments must not only be felt but justifiable with reasons to everyone in the community--victim and offender included.  That is to say, I must be able to justify a judgment to each party in terms that are relevant to them;  this will require I appeal to reasons.  Reasons are simply facts that count in favour of or against some action or judgment.

Another obvious problem emerges.  How do we reconcile situations where there are competing reasons for a judgment?  Suppose the victim wants the offender to receive 10 years in prison, the offender wants none, and the community thinks he deserves 7; how do we reconcile such a situation?  But we needn't suppose that just because there are 3 competing notions of a fair judgment that each group will not understand the reasons for the others' desire.  This is all that a theory of reasons requires.  Whether the judgment agrees with every particular interest's desire is not a likely outcome, so what we seek is an outcome for which each party will acknowledge the intelligibility of the cited reasons.  This is not such an unusual occurrence.  It often happens that we may not agree with a person's decision or act but we can acknowledge the validity of their reasons for doing it.

I believe everyone has on multiple occasions uttered phrases such as "I understand why you did that but I would have done otherwise."   The reasons need not be decisive--only acknowledged as valid.  When a party cannot understand the reason for a judgment, that judgment fails the test of justice.  An example would be merely appealing to an arbitrary rule.  Unless the rule itself can be justified by reasons intelligible to all stakeholders, adherence to the rule is not a reason that can be appealed to.

Whose Judgments Matter?
Up until now I've implicitly assumed that the judgments of 3 groups matter: the community, the victim( s), and the offender.  To defend this position, I will drawn on ideas from Christie's theory of restorative justice.  However, for the purposes of my paper, I am mostly concerned with defending the right of victims to express their sentencing desires at sentencing hearings--so I will emphasize this aspect.

Very briefly, I will first discuss the grounds for community involvement.  First, I will separate myself from Christie and argue that court should be presided over by a professional judge, not an ad hoc gathering of the community members.  I will defend this position later.  For now, it suffices to say that given practical considerations, a jury of peers and a democratically elected local judge is an imperfect but defensible way for a community's values to represented in court.

A community's judgment regarding punishment must be represented in court because the laws--in particular the criminal code--are an expression of community values.  A community desires a judgment to reaffirm to the criminal, itself, and other potential offenders what its values are.  If a judgment is not 'felt' to be just by the community is must not reflect its values. And certainly if sufficient reasons cannot be given to the community to accept the judgment, it also must not be just.   For these reasons, community input is necessary during sentencing.  The judge and the jury of peers are symbolic representations of the community.   There will of course be difficulties with defining community values in a heterogeneous and socio-economically stratified society, and I will briefly address these later.

The punishment must also be 'felt' and justifiable with reasons (that he views as sufficient) to the offender.  In ideal conditions the offender will feel guilt for his crime and will be emotionally susceptible to the requirements of justice beyond his personal interests.   We want to avoid punishments so harsh that the criminal feels they are unjust or unjustifiable.  This will make reintegration into society difficult because the values of society are not his values.  In non-ideal conditions it is doubtful the offender will 'feel' the sentence is just.  In such cases, the aspiration ought to be to find a punishment that is at least justifiable to the offender in a way such that he recognizes the validity of the justifying reasons.

My most important, and perhaps most controversial position is that victim input in sentencing is vital to substantive justice.  I will develop and defend this idea in more detail but for now I will say that it is the victim who is harmed; the victim who lives everyday with the negative consequences of the crime--not society.  The injury to society is usually either symbolic or inferential.  Removing the victim from the sentencing proceedings potentially robs him of any feeling of personal justice.

Before proceeding I want to repeat a prior qualification.  I'm not suggesting that what the victim wants is what happens.  No.  The victim has the opportunity to participate and express his desires;  express the reasons for which he wants a particular punishment; express what would repair his dignity, and make him feel whole and that justice was done.  Having the state mete out some punishment with which he has no relation does not satisfy any of these requirements for justice from the point of view of the victim.

All this said, the victim's desires for a particular sentence are only several of many reasons that must be weighed against those of the offender and the community.  Again, the ideal is not that everyone get exactly what they want but that justice is felt--which can partially be accomplished through participation--and that jugements be justified by reasons accepted as sufficient by all three stakeholder.

The Problems:
The objections to victim involvement in sentencing are not so easily brushed aside by appealing to emotions and sufficient reasons.  There are serious consequences to breaking with standard procedural justice where the victim has--if any--only a minimal role (in the form of victim impact statements) in sentencing.  To discuss these potential problems, I must return to an unqualified idea with which I opened the paper and which I have yet to develop:  mercy is preferable to revenge.

Before I begin to justify or qualify the positive assertion, I must lay out two important arguments against mercy and victim input that I'll have to deal with.  I must do this first, to give the context within which I formulate my argument for mercy and victims participation. The first is the argument from parity.  Consider two offenders, Bob and Jane, who are the same in all relevant respects.  Bob's victim was merciful so he received 2 years less for the same class of crime than Jane--whose victim wasn't merciful.  Intuitively this seems unjust.  Surely, justice requires that relevantly similar individuals committing the same class of crime get the same sentence.

The argument against mercy is that if we allow for offenders to receive less than what they deserve based on victim desires, then there seems to be no good reason to prohibit offenders getting more than they deserve.  If in sentencing we're going to take into account victim desires, why should we prefer deflation over inflation?  And on what grounds can we justify it?

The other problem is procedural: victim presence at a sentencing trial where they are giving an emotional accounting of all the harms--psychological, physical, and material--that they have suffered at the hand of the offender is sure to prejudice the judge and jury.

There's the further problem that some victims may be more articulate than others and so will have a greater impact on the judge and jury rendering the sentence closer to their desires than it would be for an inarticulate victim.  This also distorts 'treating like as like' from the point of view of the criminal who has a more articulate victim.

I will reply to  these substantial objections, but to do so I must qualify and defend my assertion that mercy is preferable to revenge.


Mercy vs Revenge
First I must qualify "for whom?".  A society.  A community.  On personal level, I do not purport to say that mercy is preferable to revenge any more than I would assert that intelligence is preferable to humour.  Humans have tendencies for both and the desirability of each varies for each and also from situation from situation.  But on a social level, I feel I am on firmer ground when I assert that mercy is preferable to revenge.  I will make two brief arguments one normative and one empirical.

Why might mercy be morally praiseworthy while revenge not?  I'll refrain from arguing that revenge has no moral value.  I'm agnostic on that issue: my only claim is a relative one--that relative to revenge, mercy is preferable.  On an individual level consider what is required to be merciful.  What does it take to turn the other cheek? To forgive your offender and ask that they be punished less than what they are judged to deserve?  Very often, this requires tremendous strength of will to act against what our anger tells us to do.  Overcoming anger, resentment, and the desire to 'get even' requires much of us.

Consider what is required of us to act vengefully or in retaliation.  Is there any effort involved?  Must we struggle internally with selfish desires and sympathy for another--even if underserving?

One might reply that internal struggle does not a virtuous action make.  Surely, the premeditating murderer or thief must wrestle with their conscience--and if it is lacking, then at least with their desire that they not be caught.  To risk great harm to oneself also requires internal struggle.

So, on what principled grounds can we distinguish a virtuous from a non-virtuous act if both can result from internal struggle?  The answer is that the merciful act is virtuous because it struggles to set aside self-interested desires in favour of other-directed desires.  In the case of no-virtuous acts, the direction is reversed: moral considerations give way to the selfish.

Nevertheless, we might agree that mercy is virtuous on an individual level but it does not necessarily follow that it is a good on a social level.  Its being an individual virtue is only one reason to count in its favour.

To show that mercy is a social good I will argue, on empirical grounds, that its opposite is bad for society.  In 'Better Angels of Our Nature' Steven Pinker posits that there has been a steady decline in homicides beginning with hunter-gatherer societies up to the present.  Part of his argument rests on the idea that as our values move away from those of 'honour societies', 'honour' killings disappear which impacts the homicide rate.  In fact, it is uncontroversial that honour societies have much higher murder rates.  The idea then, is that since honour killings are often revenge-based, revenge is empirically a less desirable value than mercy in a society if we value lower homicide rates.

There is a reply to this argument suggested by Christie and Sommers.  They argue that while it may be true that homicides rates are high in societies where revenge is important, other crimes significantly less than in low-honour crime societies.    There are a couple of different explanations for this.  One is that since the cost of retaliation for an offense in so great, there is a very strong deterrent effect.  Another plausible explanation is that since honour and mutual respect are so highly valued, minor crimes don't occur--people simply respect each other.  The reason why the homicide rate is high in such societies is that given the 2 previous explanations, the only crimes are major crimes.  There other historical arguments too (see Brandt and Cohen), but these will suffice.

It looks like the revenge proponent can present us with a choice: we can have a relatively high homicide rate and almost no other crimes or we can have lots of daily criminal activity and a low homicide rate.  The reply to this dilemma is to ask whether revenge as a value is a necessary condition for mutual respect.  I'm not sure this argument can be made.  There's a question of burden of proof here, furthermore there seem to be examples of low crime societies with low rates of honour killings.  I think the revenge proponent's position is weakened on this account.

The revenge proponent has one other argument which comes from social-psychology.  In a famous set of experiments designed to test what is the best strategy regarding cooperation and self-preservation it was shown that playing with an overly forgiving strategy was disadvantageous.  Also, depending on the strategies the other players used, different strategies were successful.  What is interesting is that in most simulations the successful strategy entailed forgiving twice before retaliating (note: the successful strategy depended on what strategies other players used so this was not the only winning strategy--but the argument will still work because the other winning strategies were more retaliatory).  This looks like a strong argument for forgiveness, but the revenge strategist can argue that without the eventual retaliation, the forgiveness strategy doesn't work.  Again, it seems like we have a stalemate. 

There is one more argument I will propose for why we ought to favour mercy over revenge.   It has to do with the offender.  Recidivism rates are very high.  We must ask ourselves why.  There are many complex socio-economic reasons, but relevant to revenge-mercy, I suggest there is reason that should lead us to favour mercy as a social value.

When a criminal is given what he perceives as an unduly harsh punishment he does not feel this is justice.  The reasons for his punishment, are incomprehensible to him.  The punishment essentially tells him his feelings don't matter.  His reasons don't matter.  How can he ever reenter a community that from his point of view is unjust and does not share his values of justice?  He is notpart of this community--by definition--and cannot be.  He is an outsider and not only is treated as such, but will behave as such.  It should not surprise any parents that people often act according to expectations.

Mercy shows the offender that, although you have transgressed our norms and have harmed particular individuals, you matter.  It's as simple as that.  Mercy communicates to an offender that his feelings matter to the community.  Offender-relevant reasons matter to the community: in fact, they are shared reasons.  So, he matters to the community.  It is only under such conditions that we can hope the offender can be reintegrated into the community after serving his punishment.  This is my argument for mercy.  Revenge prevents reintegrations and reenforces a division of the community.  If we value community, we must value mercy above revenge.

What do we conclude from here?  As a society we need to ask ourselves, what kind of world do we want to live in?  This is the great thing about being human.  Within a (very limited) scope we have the power to consciously shape our own social conditions.  Do we want a forgiving and merciful society or do we want a vengeful one?  I can't give any conclusive arguments, but I suggest the former because mercy gets us closer to what I think is a good society where we don't waste human lives by ignoring important causes of recidivism.

Reconciling Victim Involvement with Revenge and Mercy
There is a problem looming.  It seems some of what I've said contradicts.  I want a criminal justice system that is merciful and includes victim input in sentencing but I don't want revenge.  What if revenge is what the victim wants?  I've already responded by saying that the victims desires are only one set of reasons we ought to consider in sentencing, but this isn't all I'm asking for.  I also want mercy to be an important value.  How can I reconcile this while taking the victims desires seriously rather than symbolically?

Here is my proposal.  We do not procedurally restrict revenge desires by victims.  This would undercut the notion of justice for which I've argued.  Instead, we create conditions under which mercy is nurtured and reenforced.

I have two central proposals.  The first is that there be wide judicial discretion and the second is that victim-offender mediation be a first step in any sentencing procedure.  Both my claims rest upon one fundamental assumption:  that face to face human interaction allows both parties to see the other as a human being with emotions, desires, family, friends, interests, and problems, just like them.  By removing the distance between victim and offender, and community (via the judge and jury) and offender, harsh vengeful punishments will be less likely.

On Wide Judicial Discretion
Wide judicial discretion sits somewhere between the two extremes of rigid ordinal sentencing guidelines and village-community justice.  Christie argues for the latter, while I do not dismiss it philosophically, I suggest that practical considerations rule it out at this point.  While people might enjoy reality TV, the amount of time required (at this point in history) for a modern community to gather 'round, deliberate and pass judgment on every crime is out of reach.

The other possibility is rigid sentencing guidelines.  Before we evaluate this option I will repeat the values I wish to maintain in the theory of justice I'm presenting: (1) as much as possible, justice must be felt and justifiable to the general community, the victim, and the offender, (2) mercy is to be preferred over revenge.

The first objection to rigid sentencing guidelines is that they are drafted and passed in the legislature.  There are two problems with this.  The first is that the legislature cannot possibly anticipate all the relavent reasons, particular to an individual case, for which a certain judgement would be just.  Reasons are facts which count in favour or against some act or judgment.  It unlikely that the legislature could anticipate and incorporate into the scheduling matrix of punishments every future possible fact.  The reply to this might be that there are certain facts that we know to be relevant to all cases, and in the interest of parity, we need to apply the same criteria to each case.

We can reply in the following way:  first, is that there seems to be no principled ground for which to reject one class of facts over another.  The distinction seems arbitrary, and while for the most part a certain class of facts, say the offenders childhood, are irrelevant, there are some cases where this may be relevant.  Such things cannot be anticipated.  Also, if such facts--which are excluded from the legislated sentencing schedule--are not considered in sentencing where they are relevant, this undermines the possibility of justice being felt and that a reason can be given to justify the punishment.

Another reply is that the physical and emotional distance between the legislators and the victims makes it all to easy to draft harsh sentencing laws.  The distance prevents legislators from considering offenders as human beings.  Rather, they are merely criminals--not community members.  There is strong empirical evidence to support the idea that as states move away from judicial discretion in favour of legislated sentencing guidelines, the harshness of sentences increases.

The culmination is punishments that don't reflect the offenders' and significant portions of the community's feelings of justice and reasons of justification further ostracize subgroups and the offender, and make reintegration increasingly difficult.

Wide judicial discretion has several advantages over rigid sentencing guidelines.  The judge is able to take into account facts and thus reasons unique to a case.  He has available for his consideration the context of the crime.  This is vitally important information for a judgment that is to be felt and justified.

The face to face interaction with the offender increases the likelihood that he will treat him less harshly than if he were an abstract concept or as 'other'.  It is much more difficult to condemn someone to 20 years in prison if you interact with them face to face and hear their personal story.  You must go home knowing that it was you that sent a man to prison for x years rather than y years, or death rather than y years.  The are consequences to one's conscience if a one is overly harsh.

A judge interacts with all segments of the community--more so than a legislator--and will be more sensitive to socio-economic reasons for crime.  This will further increase the possibility that he is sensitive or at least aware of the values of other segments of the community than his own.  The picture and facts available to a judge to make a judgment is much richer than that of any legislator.  And last the judge has available to him the emotions involved in the case.  He can see if the offender is remorseful, the degree to which the victim is psychologically harmed.  There are also important justifying reasons for a sentence that a group of politicians in a legislative building cannot anticipate or feel.  The hopes of obtaining mercy from a legislature are minimal.

Section on Biasing toward Mercy via Mediation:  To be written.

Section Addressing Procedural Dangers of Victim Involvement in Sentencing:  To be written.

The key problem is this:  what if despite attempts at mediation, the victim insists on a harsh punishment.  What of mercy? My position is that the judge must take the victims desires into consideration and weigh them against other competing reasons: how will the sentence affect the ability for the criminal to reintegrate  How far do the victims desires deviate from the community norms?  Barring decisive reasons to the contrary, the judge ought to give the offender a sentence harsher than the average, but still within the range of what is justifiable to the community and can be felt to be just by at least a significant portion of the community.

He is not obligated to give a sentence that is exactly what he victim wants.  It will happen, that some people or crimes by their very nature will elicit an over-riding desire for revenge.  And consideration of such requests should not be prohibited.  However, by setting up a restorative system with the values and conditions I have suggested will aim at balance between felt and justifiable justice for all and the cultivation and expression of mercy.











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