Criminal rights vs. society

[blue-mangos.livejournal.com]

Inspired by comments received in my previous post

We as a society have an ethical obligation to both respect individual rights and protect our most vulnerable segment. But occasionally these two tenets are at odds with each other and we’re faced with the dilemma of balancing them.

We can look at almost any crime and find a root cause as to what turned the person to commit such an act. Criminals will always have a justification for their actions, the question becomes whether we accept it as valid reasoning or not.

I think we can all agree that child molestation is a most heinous crime. Child molesters are seen as monsters. However, pedophilia is actually a mental illness, originating usually in the afflicted person’s teens, and often as young as 10. It is not their conscious choice to be attracted to children. Added into the mix is the fact that some of them were molested themselves as children, although recent studies have shown this not to be as pressing of a factor as previously thought. Should these factors influence our judgment on them? If we are going to accept this reasoning of outside influences it can be applied to a broad spectrum of crimes. Young black males often grow up in an environment that leads to few opportunities beyond a life of crime, due to poverty, lack of access to a good education and an overwhelming exposure to gang activity. They currently make up the largest percentage of the prison population in North America. Concessions are rarely granted due to these influences which were beyond their control.

Should we ever look for reasoning behind a crime when applying judgment, both legally and morally? Sentencing guidelines already allow for leeway to be given due to circumstances but these are often applied unjustly due to inherent racism in society. My personal view is that legally, no. If a crime has been committed they should be subject to the penalty determined by law, but preferably with sentencing applied in a more equitable fashion. Morally, that is a much murkier area. We are all going to bring our own personal prejudices to bear when making such a decision.

Our current (North American) justice system is set up as retributive. Criminals are locked up to both to punish and to protect society. However, except in the most extreme of crimes, they are eventually released back into the same society that was deemed in need of protection from them. The current recidivism ranges from 1.5% to 70% over a 3 year period. Statistics show that sex offenders have a lower recidivism rate than other criminals, ranging from 5.3% to 14%. However, sex offender is a very broad term and recidivism is only calculated for 3 years. The RCMP did a study over 30 years and found much different numbers. If you break it down child molesters have a much higher rate of reoffending over time, at 42%. And taking that even further although familial molesters are less likely to reoffend, those who molest family friends, and the rare that molest strangers have a recidivism rate of 77%. The average child molester will molest 70-117 children in their lifetime.

Because it is a mental illness treatment programs rarely work although studies show that early intervention and therapy will help. What options do we have if treatment does not work, both with molesters and other violent criminals? Canada has the Dangerous Offenders Act,where if a person has proven themselves to be a danger to society through their life of crime they can be locked up indefinitely beyond what the sentencing of their last crime was. Essentially they are being preemptively jailed for future crimes they are likely to commit.

Although this seems harsh, at what point do we stop looking at the rights of the individual and start looking at protecting society at large, especially the most vulnerable among us?

Currently our judicial systems seem to concentrate more on retributive justice rather than restorative. Maybe the answer is to the problem is to switch that.

Note: Let’s try and keep this civil shall we? I would love a thoughtful discussion on the matter but barring that at least no personal insults please.

Comments

[meus-ovatio.livejournal.com]

I'd say that the obligation of the State extends as far as the good faith of the felon. If the State has no reason or evidence of good faith on the part of the offender, then the State has no obligation to restore the offender.

Lack of "access"? Seriously?

[montecristo.livejournal.com]

Ten thousand dollars, per student, per year, for twelve years, on average in the U.S. How about blaming a set of cultural values which encourage a high time preference and a disdain for learning? You can't fix that by throwing other people's money at it.

At any rate, not everyone afflicted with a sexual attraction to children will act upon the impulse. Part of what encourages responsibility and individual impulse control is the direct experience of consequences and the requirement of restitution. If potential violators of the rights of others were confronted by the prospect of effective self-defense, for starters, and the necessity for restitution, to the victim, not "society", when they do violate the rights of others, the rate of crime would plummet. We are not helpless pawns of our impulses. It is the widespread adoption of that philosophy which results in higher rates of crime in the first place.

Re: Lack of "access"? Seriously?

[blue-mangos.livejournal.com]

Have you ever seen an inner-city school? They're not exactly the most productive of learning environments.

If potential violators of the rights of others were confronted by the prospect of effective self-defense

Taking the specific crime I focused on here, I hope you're not suggesting that children need to use self-defense to ward off molestation.

Re: Lack of "access"? Seriously?

[montecristo.livejournal.com]

Inner-city schools are not exactly the most productive of learning environments, it is true, but that is not because of a lack of spending.

Very young children have parents for defenders, for starters. Secondly, we need to define what we mean by "children" when we talk about self-defense. Plenty of adolescent "children" are perfectly capable of defending themselves, provided they are not kept from learning responsibility and are held accountable for their actions and are taught right. It is only in the context of this society, which tends to infantilize people of all ages, that more adult behavior expectations of all people are unrealistic.

Re: Lack of "access"? Seriously?

[mrbogey.livejournal.com]

Inner city schools usually suck because the students destroy them.

Not because some outside force is conspiring to hurt them.

Re: Lack of "access"? Seriously?

[atasharuku.livejournal.com]

Agreed. There is a tendency, in this society, to give people even more excuses than they've already given themselves (which is quite a lot to begin with). Oftentimes, an effort to claim that we have little to no control over a trait or habit is an effort to exculpate ourselves from something that we should be held accountable for. Willpower and self control have experienced a sharp decline in large part because of this mentality.

I could cite many people who have overcome difficult circumstances and gone on to succeed, simply because they wanted it enough. And while nothing is ever black and white, and no 2 sets of circumstances are ever the same, it pays to note those peoples' resolve, and to consider the possibility that a good portion of these "disadvantaged youths" have fallen prey to nothing more than laziness and a culture that scorns learning.

Re: Lack of "access"? Seriously?

[atasharuku.livejournal.com]

It pays to note the difference between "can't" and "won't". (This topic is a pet peeve of mine - I've had too much personal experience with it in my life >_<)

Re: Lack of "access"? Seriously?

[montecristo.livejournal.com]

What's even more interesting in the discussion is that the school system may be facillitating a process whereby the miseducated are miseducating the students. Much talk on all sides of the issue has implied or stated directly that there is a problem in the attitude and philosophy of the students and their parents, but maybe it is that the students are turned off by the curriculum designed by committees of political bureaucrat hacks, notoriously miseducated in economics and blinded by political ambitions. People want to succeed, and I don't think the public school system facilitates that goal very well anymore. Check out the Stossel video on what did work in one poorly-performing school for one teacher. (http://www.facebook.com/l.php?u=http%3A%2F%2Fbit.ly%2FjTExkW&h=323cf)

[underlankers.livejournal.com]

In my opinion the problem is treating them as though they are opposed to each other at all times, as opposed to merely some of the time. The most logical response is to rehabilitate those criminals who, for instance, have committed non-violent, victimless crimes, and to incarcerate for life those who are obvious threats. Another obvious point is not to treat dealing dope like it's the end of the world, which it is not. Eliminating penalties and redacting the felony category of certain illicit substances and regulating (and most vitally of all taxing) said substances would in itself completely erase budget deficits in some states.

Now, certain drugs like crack cocaine and crystal meth need to be treated with a rod of iron, but that's not equivalent to maximum-penalty sentences for dope says the man from the family of drug addicts.

[blue-mangos.livejournal.com]

and to incarcerate for life those who are obvious threats

To do this we would either have to drastically change sentencing laws or accept preemptively removing people from society based on possible future acts.

And I agree completely with you on the drug laws.

[underlankers.livejournal.com]

Drastically changing sentencing laws is the obvious point I was getting at, drug laws are the most obvious example of it, another is the practice of sentencing black people for longer times than white people for the same damn crime. Which hopefully is something nobody would defend as just.

[anosognosia.livejournal.com]

"The most logical response is to rehabilitate those criminals who, for instance, have committed non-violent, victimless crimes, and to incarcerate for life those who are obvious threats."

Why shouldn't we try to rehabilitate criminals whose crimes are violent and/or have victims?

"Now, certain drugs like crack cocaine and crystal meth need to be treated with a rod of iron..."

And alcohol. Those are definitely the three worst.

Ah, the Drug War, yet another delusional fantasy of power

[montecristo.livejournal.com]

Now, certain drugs like crack cocaine and crystal meth need to be treated with a rod of iron...

Oh brother, the much-worshipped, omnipotent "rod of iron". Yeah, great idea, because Prohibition worked out so very well. Your "rod of iron" is more like Sauron's Ring, (http://en.wikipedia.org/wiki/One_Ring) an attempt at using wicked or counter-productive means to effect supposedly good ends. Prohibition works no better than economic central planning, and for the very same reasons, many having to do with the fact that prohibition is itself, in many aspects, a form of economic central planning. A regime of consensual, victimless crimes creates social pathologies worse than the diseases they are trying to mitigate. The social conservative right are just as delusional as the nanny state left. Social engineering is to the humanities analogously what the belief in a priviledged reference frame (http://en.wikipedia.org/wiki/Preferred_frame) is to physics. It doesn't exist. That's not how human society works. It's a conceit wherein "social planners" delude themselves with the idea that they occupy a priviledged objective vantage point or frame of reference outside of the society upon which they are theorizing and are consequently omniscient, omnipotent, perfectly united on ends and means, and have monopolies on knowledge, imagination, and initiative. Instead, what happens when they attempt to treat people as means instead of ends and to "socially engineer" them for politically governed purposes, they get unintended consequences, simply because the attempt presumes something that is essentially false: that there is a priviledged class of "philosopher kings" who can, through Machiavellian, Benthamite, Strausian, or Skinnerian methods, manipulate the bulk of humanity into some social form which is objectively "better" than one derriving from evolving systems of voluntary cooperation. It doesn't work that way. Human society is a non-linear, chaotic, emergent phenomenon which cannot be "planned" or effectively coerced "for the individual's own good", against his will, without wrecking it. People do not just "deserve" freedom; they are free, and any political system which attempts to deny or change that reality will produce pathologies proportional to the coercive distortion. Just ask the Soviet Union. At best, the result is the cultural, technological, and economic stagnation of Mandarin China or results like the Western European "socialist democracies," which are demographically and economically self-destructing in slow-motion.

Pining for a lost aristocracy of noble swordsmen, armed with righteous "rods of iron", or an imagined technocracy of bureaucratic super-brained infallible psychohistorians (http://en.wikipedia.org/wiki/Psychohistory_(fictional)) will not solve real-world problems which originate in a metastasizing political sphere. (http://en.wikipedia.org/wiki/Franz_Oppenheimer) Politicians can outlaw drugs all they want, and they can legislate that the tide not come in as well, but that will never stop plenty of human beings from producing, trading in, and consuming, forbidden drugs. What it will do though, is create worlds of opportunity for crime and other forms of corruption, both political and free-lance, and in many cases, actually retard the acquisition of useful medical knowledge and capabilities. (http://www.facebook.com/l.php?u=http%3A%2F%2Fwww.alternet.org%2Fdrugs%2F150874%2Fcan_psychedelics_make_you_happier%2F%3Fpage%3D3&h=323cf)

[rasilio.livejournal.com]

I agree with most of what you are saying here.

The root cause of the crime problems most nations face is that their criminal justice systems are designed to exact retribution on offenders. This means that the only justice possible is the eye for an eye sort and didn't someone say something about that leaving the whole world blind?


The solution is to switch the focus to Restitution, that is doing as much as possible to make your victim as whole as possible, Rehabilitation that is retraining the offender to ensure that they are unlikely to commit further crimes, and then when that fails to sequestration, that is removing the offender from society in as humane a manner as possible.

[underlankers.livejournal.com]

Which is kind of hilarious as the Eye For an Eye principle was a crude way of saying "let the punishment fit the crime."

[mrsilence.livejournal.com]

We need to stop punishing people on the basis of retribution alone, as a worthwhile outcome of the justice system.

We need to focus on RESULTS - specifically, ameliorating the effects of crime that have occurred and reducing further incidence.

The focus of the justice system needs to be, in this order:

1. Restitution - Having the offender restore the injury caused by the offence insofar as possible, or otherwise making up for the offence to the victim, their family, or to society as applicable. This should include the cost of the justice system's response to the offence.

2. Rehabilitation - Treating the offender, including psychologically, in a manner that best ensures they do not offend again.

3. Prevention. - Preventing the offender from doing the same thing again if there is reason to believe they may commit the crime again irrespective of efforts to rehabilitate them.

4. Deterrence - Discouraging others from committing the same offence.

Now there is certainly a place for imprisonment and the like in the scope of this. But that is not the primary objective - to lock people up for committing crimes. The focus is on creating just results when a crime is committed. It's about ensuring insofar as possible, that whatever injury was done is rectified by the offender and that it does not happen again.

[raven-blue.livejournal.com]

What you have suggested actually mirrors ancient Irish Brehon law. Everything had a value associted with it, even life. A person could commit rape and the Brehon courts could order him to pay the victim, or victims survivors a certain amount of cattle, or other system of value. This becomes a problem when you have people who cant afford to pay. It also becomes a problem when you begin to create the value system. The value was based on ones function in society. A noble warrior was given a higher value than sheep herder. And of course instances arose when wealthy people could go out and commit crimes knowing they could afford to pay the cost.

[anosognosia.livejournal.com]

"What options do we have if treatment does not work...?"

Given that treatment, at least by any reasonable definition, is essentially non existent, how could we be in a position to claim that it doesn't work?

This seems to be an invented problem, alternately a consequence of or a justification for the absence of reasonable treatment in the first place.

[blue-mangos.livejournal.com]

Well they've tried treatment programs for pedophilia and outside of early intervention, nothing had a strong impact. There's been some limited success with other sex offenders, but those programs are still young, it's not known if there will be positive long-term results. I have no idea if there are treatment programs for other violent criminals, I'll look into it.

[kinvore.livejournal.com]

As long as social inequity and poverty exist we're going to have crime. Hell even if a minority manages to get out of a bad neighborhood, when he or she moves into a nicer one they may have to deal with white neighbors moving out because they don't want to live with a minority. Property tax revenue drops and the quality of that neighborhood schools along with it. Next thing you know it's become the new bad neighborhood.

There's also cultural issues at play, but part of that arises from being rejected from society for being the wrong color.

This reminds me of an old roommate of mine. She's still a good friend, white girl with blonde hair. One day she dyed her hair pink. Suddenly she starts getting ugly looks from people on the street, and for the first time ever she starts getting pulled over by the police for various "equipment violations" that were never an issue when her hair was blonde.

When she complained about it I told her she should write a book called Pink Like Me.

[raven-blue.livejournal.com]

That is a rather racist idea. First of all a white neighbor moving away because a black person moves in is not in any way a crime.

"Property tax revenue drops and the quality of that neighborhood schools along with it. Next thing you know it's become the new bad neighborhood."

This makes it sound as though you are suggesting that a black person moving in to a white neighborhood is the cause of property devaluation?

On a related note...

[kinvore.livejournal.com]

Oh and another thing. I think we need to consider prison reform instead of just building more prisons. The problem with our prison system now is it only makes prisoners more dangerous, and when they are eventually released back into society they are seldom prepared to become a team player so to speak. They often commit crimes just to go back in.

As it is, prison is a place where criminals can rape and assault each other nearly at will and in order to survive in such an environment one usually needs to undertake extremely antisocial behavior.

We should make prisons where inmates are carefully sequestered from each other. Not talking about constant solitary, but maybe individual cells where they can still see and talk to each other but cannot physically reach each other in any way. Their only real interaction is in classes, and even then it's closely monitored. Violence is immediately ended and punished with outright solitary, followed by attending the classes in shackles for a period of time.

The classes will be a second chance to learn the skills necessary to integrate back into society, not only academics but therapy as well, such as behavior cognitive therapy and anger management. So not only must they earn their way out by learning to control their behavior under strict supervision, but make prison a place where they do NOT want to return to.

This still wouldn't work for sociopaths, for them we need a reliable means of detecting them early in life. Once they've started antisocial behavior it's probably impossible with today's understanding to get them to stop.

[raven-blue.livejournal.com]

"Should these factors influence our judgment on them? If we are going to accept this reasoning of outside influences it can be applied to a broad spectrum of crimes."

I would say no in most cases. For every person who became a criminal because of a bad childhood there is a person who became a good and decent person. And the reverse is true as well. You cant really look for past justifications for present crimes unless the justification could prove to be a strong mitigating factor. One example of this would be it is wrong to murder but if a man sees his wife raped and killed and then he kills the man who did it this is a crime with reasonable justification. If however the husband waits several years and then goes out and kills someone not related to the crime then there is no justification. This even includes mental condition because I reject the insanity plea (to use the example of murder) All murder is insane even if it makes perfect sense.

"Statistics show that sex offenders have a lower recidivism rate than other criminals, ranging from 5.3% to 14%. However, sex offender is a very broad term and recidivism is only calculated for 3 years"

The laws pertaining to child molestation really need to be changed. I live down the street from a convicted child molestor. The actual truth of teh case is that when he was 20 he had a 17 year old girlfriend and her father brought the charges against him. So did he really commit a crime?

"Currently our judicial systems seem to concentrate more on retributive justice rather than restorative."

That depends on the crime and there is no simple answer. A convicted child murderer can be taught the error of his way, come to regret what he did and be in all respects rehabilitated but should he ever be released into society again? Part of rehabilitation sometimes means accepting that your crimes are to great for you to be accepted back in society.

"Although this seems harsh, at what point do we stop looking at the rights of the individual and start looking at protecting society at large, especially the most vulnerable among us?"

That is the one question of any democracy that has never been answered, perhaps because there is no answer. If society takes away a single right to protect a greater good then that society makes a statement that individual rights take secondary place to societal protections and this means that society can begin to chip away at individual rights under the guise of protecting society. The obverse of this is that a soceity that protects individual rights over society is doomed to fail because individual rights are often at odds with each other.

[harry-beast.livejournal.com]

The excuses people make for committing crimes do nothing to alleviate the suffering of the victims. Criminals make a choice about hurting other people and deserve punishment commensurate with their transgression. Victims don't deserve to be preyed upon, and they certainly should not have their rights subordinated to those of criminals. I think that protecting society at large, especially the most vulnerable, should always come before criminal rights.
To the extent that restorative approaches have been proven to be effective, they should be attempted, along with some proper justice. For people who are likely to re-offend, I see no compelling reason to show them any clemency at all.

[atasharuku.livejournal.com]

Agreed.