The year 3000 – The world has seen 12 world wars, and countless other man-made catastrophes. As a result, society has evolved in many ways but most notably in its practical wisdom. Society has learned through history that humans are intrinsically self-serving, and no matter how many rules are enacted, humans will circumvent them to attain personal gain. They've learned this through the cycle of corrupted governments, coups, the imposition of new rules to prevent future governments from plundering; new governments plundering, the imposition of even more rules to prevent future governments from plundering, and again new governments plundering. Society has also learned through history that violence only fans the flame of hatred, which leads to more violence. They've learned that while armies may quash revolts and defeat enemies; when the soldiers return, they inevitably sow the seed of contempt and hatred in the land they've occupied; and that creates a breeding ground for future revolt.
Society of the year 3000 has learned and evolved. They appreciate that rules are necessary in any society, but they also have learned that people and situations are never rigid nor straight; and that sometimes rules have to be bent in order to achieve the ideal outcome. The whole structure of governing has become a lot less centralized, and more citizen oriented. This is evidenced by a new criminal justice system that strays away from the principal of retribution, and focuses more on rehabilitation. Judges are given back autonomy, and the discretion to impose appropriate sentences. Sentencing powers that were once usurped by the legislative by the implementation of mandatory sentences, now only exist in textbooks that are discussed during constitutional lectures.
Criminals are no longer looked at as viruses in society, but more like patients to be helped. The justice system truly considers the character, personal attributes and the background of the offender before passing judgment. This has resulted in several things:
Offenders being rehabilitated and reintegrated into useful members of society
Fewer broken homes (since offenders are now allowed to work and provide for their families in the day while serving their sentences at night)
Criminal courts being less busy because recalcitrant offenders are hard to come by.
A more productive society (since offenders are reintegrated back to contributing members of the public instead of being weeded out)
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Back to reality - the year 2011. You the reader may think that whatever written above is unattainable and that this whole idea of adopting a criminal justice system that seeks rehabilitation instead of retribution is far fetched idea that will never work in practicality. You may believe that many criminals are set in their ways, and flexibility in sentencing will only mean that they are back on the streets to commit more crime sooner.
I'd like to argue that this is definitely attainable, and not only that, it is already taking place on a small scale. However, before I delve into that, I'd like to clarify my stance right from the outset. I am not advocating the idea of going soft on criminals or to abolish the sentence of imprisonment. I am merely advocating the idea of having a flexible system that allows judges to filter offenders into varying degrees. One of the first things that we were lectured on in school, when I was doing my diploma in law was that no two cases are ever the same. In furtherance to that, I also submit that no two offenders are exactly the same; and we need to match the sentence to both the crime and the offender, and this can never be done if we have mandatory or prescribed sentences.
I'd like to share a real story about a man named Michael. Michael was a married man supporting his wife and kid. He held a job and managed to get his family by. One day Michael lost his job, went out one Saturday evening, got drunk and robbed a taxi driver off $50 using a toy gun. He was subsequently arrested and his case came before Judge Lois Forer in Pennsylvania. Judge Lois got acquainted with the facts and also the background of the offender and came to realise that this man was truly remorseful, and had committed the offence in desperation. He was a first time offender and had no previous criminal records. Legislative guidelines prescribed a minimum of 5 years imprisonment for armed robbery. Judge Lois felt that this was excessive, and that the facts of the case did not warrant such a long custodial sentence. She sentenced him to 11 and a half months imprisonment, while allowing him to work outside the county jail in the day to support his family, and to also make full restitution. Michael complied with the order, duly served his 11 and a half months, and made full restitution of the $50 he stole. He was released, went back to his ordinary life, managed to get a job and took back his role as a father and husband. Unfortunately, the prosecution appealed against his sentence. The supreme court heard the appeal 2 years later (by this time he had served his sentence and was working and supporting his family), and ordered Judge Lois to sentence him according to the guidelines for a minimum of 5 years. Judge Lois refused to do so and resigned from the bench. Michael was sentenced to serve another 4 years by another judge. He went missing after sentencing and has remained a fugitive since.
This is just one example of how mandatory sentences can be counter productive. It usurps the power of the judiciary and places it in the hands of the legislative. In effect, and to a large extent, it is the legislative that decides the sentence of a person; a person whom they have never met nor heard. This should never be the case. The onus of deciding a sentence should always lie completely with the judge; for the simple reason that they alone have heard the case, and all its aggravating and mitigating circumstances. They would be cognisant of the offenders character and background; and therefore would be in the best position to decide on an appropriate punishment. If the legislature prescribes a minimum punishment that must be meted out, the judges hands are tied. Even if they personally believe that this particular offender truly deserves a lighter sentence, they are unable to do so. There is a legal maxim in latin that goes “Muilta exercitatione facilius quam regulis percipies”. It basically means that one will perceive a lot more through experience than by rules.
This is exactly what happened in the story about Michael. The judge had first hand experience of the trial, of the prosecution's case as well as the defence's case, and the personal attributes of the offender. She made a flexible judgment that was enough to serve its retributory purpose as well as its rehabilitative objective, and guess what? It worked! Michael served his eleven months and got out and was able to get a job and support his family. He never broke the law again until his appeal was heard and he was re-sentenced to the remainder of the 5 years. This is a classic example of how a mechanical and rigid legal system can lead to a gross misapplication of justice.
There is another story about a man named Gary Pettengill. Gary was 23 years old when he enlisted into the U.S Army. He was deployed to Iraq and sustained a serious back injury there. He was subsequently discharged from the military on medical grounds. He was married, and his wife was expecting their third kid. To top it all off, he suffered from Post Traumatic Stress Disorder (PTSD). In order to ease some of the symptoms, Gary began smoking marijuana. He only managed to hold down a part time job because of his back problems, and the money he made was insufficient to provide for his family. In desperation he started selling marijuana as well. He was arrested in a drug bust one day; his family was kicked out of their rented apartment, and Children's Welfare threatened to take away his kids. Under normal circumstances, Gary would have been sentenced to a substantial period of imprisonment as dealing in drugs is considered a serious crime. His case came before Judge Robert Russel, in a special court called the “Veteran's Court”, in Buffalo New York. This court was set up to deal with the problem of veterans turning to crime. Judge Robert specifically set this court up because he felt that mandatory sentences were sapping out the very element of judging. The court sought to end the concept of the 'revolving doors of justice' in which recalcitrant criminals passed through repeatedly. What the veteran's court did was something I discussed above – it treated each offender as a patient, rather than a virus. It sought to treat the offender, to understand their problems, and to devise a sentence that would aid the offender and place him on the road to rehabilitation. The court did not just stop there. They actually followed up periodically after sentencing, to ensure that the offender was sticking to the plan and was coping well. In Gary's case, the court helped him get treatment for his drug problem, get a part time job, helped find an apartment for his family, and assigned a mentor to him to guide him.
Since the first Veteran's Court was set up, there are now 22 such courts in various states in the US. One might ask just how effective is this method of dealing with offenders. Judge Robert has purportedly seen 108 veterans (at the time of the publication of the article I got this information from), and of the 108 offenders, none of them have broken the law since. Thats to say a whopping 100% success rate in terms of rehabilitating and reintegrating offenders back to society.
So it is definitely possible to tweak our justice system, so that it is congruous with the principle of rehabilitation. Punishment is always necessary, and it serves other purposes as well; like the incapacitation of the offender. I do not propose that we do away with punishment and lean towards a welfare system in which offenders are merely counselled, patted on their backs and then reintegrated into society. What I am proposing is for the criminal justice system to be crafted into a living being that is able to discern, instead of a rigid mechanical system that merely has one input and one output. For a justice system that is free to adjudicate without undue influences from the legislative arm of the government, or the prosecutorial body; and the first stepping stone towards accomplishing this, is to do away with mandatory punishments.
I've included reference websites if you guys wanna read more about the two stories I've shared in this article:
Story on Michael & Judge Lois
http://findarticles.com/p/articles/mi_m1316/is_n4_v24/ai_12129669/
Story on Gary Pettengill & Judge Robert Russel
http://www.npr.org/templates/story/story.php?storyId=90016059
- Mato Kotwani
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