Hiding Behind a Pound of Flesh

The Mark is having a debate about the faint hope clause (which allows for an opportunity for parole for those sentenced to life in prison), which the Conservative government is currently trying to get rid of.  The editor of The Mark, Jordan Himelfarb, offers this little chestnut in his introduction to the debate:

It’s a debate that raises, among myriad considerations, a fundamental question of government: Does our justice system exist primarily to protect or to punish?

I believe there is a fundamental concept of justice that needs to be served (hence my belief that Roman Polanski needs to be extradited).  Punishment and protection are important, but secondary to this abstract concept.  Nonetheless, as a practical matter, Mr. Himelfarb is correct.  The question of protection vs. punishment is at the heart of many of our quandries about criminal law.

Punishment is extremely important.  Punishment serves our sense of justice.  If we see those who have caused so much pain and suffering - who have done such nefarious acts - receiving no punishment, society's faith in the system is eroded.  Our sense of justice is insulted and, consequently, we have less trust in the system and in the government agencies that serve justice.  How can we respect the police, judges and legislators if they serve a perverted master?  We need not (and should not) seek revenge, but we should administer punishment.

However, punishment cannot be our primary motivation when building our justice system.  Punishment for its own sake is the first step towards a system inspired by vengeance.  We will forget our goals and we will forget justice.  Quenching our thirst for blood will offer no reward.  Eventually, we will seek greater and greater torment visited upon our transgressors.  Rehabilitation will be lost; people will be lost.

For practical concerns, we must look foremost to protection.  We must strive to create a system that not only satisfies our abstract need for the abstract concept of justice, but also leads to a society in which people can feel safe and trust that the system is doing no harm.  Just as a system that offers no punishment will damage our sense of justice and our faith in the system, so too does a system that makes life worse for us all.

I can't think of an argument to value punishment over protection, but maybe I'm just not thinking about it the right way.  I'd be happy to listen to any such arguments.

P.S.  I have some other thoughts about the debate at ThePolitic.