Reforming The Criminal Justice System: Thinking Outside The Prison Cell

Introduction

There are five main objectives that can be advanced by applying criminal sanctions: restitution, rehabilitation, retribution, isolation, and deterrence. I will discuss these five in turn, examining how effectively the most common criminal sanction currently, jail time, fares in advancing each one of these five objectives, and suggesting alternatives that might advance these individual objectives more effectively. Then, I will attempt to pull the threads together in order to sketch a picture of what a more effective, reformed criminal justice system might look like.

1. Restitution

The idea behind restitution is to try to put the victim of a crime, as much as a money payment can do so, in a similar position to what they would have been in had the crime not been committed. Being responsible for causing the damage, the criminal bears the responsibility for making this money payment.

The current criminal justice system doesn’t even try to get the criminal to provide restitution to the victim. In fact, in a sense it does the opposite. Not only is the victim not recompensed for the damage that they suffer, they must also, as taxpayers, fund the incarceration of the criminal in a jail.

If the victim wants any kind of monetary restitution at all, they must try to sue the criminal, in a completely separate trial, in a civil court for tort damages. But the criminal justice system as such does not really help the victims of crimes at all.

One can think of ways to make restitution a more central part of the criminal justice system. The methods for doing so can be divided into two types: free-range restitution and confined restitution.

One kind of free-range restitution is asset seizure. If the criminal has cash or other assets, just seize enough of them upon conviction to provide proper restitution to the victim, no civil suit necessary. Another kind is court-ordered installment payments. If the criminal does not have any valuable assets, the court can order that they make regular installment payments of the restitution money, with the interval set with the criminal’s potential earning power in mind. If they fail to make the payments, then another criminal sanction could be applied.

We would turn to confined restitution when we don’t think it advisable to let the criminal retain their full freedom of movement. A way would have to be found to both confine the criminal and allow them to engage in the productive economic activity necessary to pay the restitution at the same time, something I will discuss below.

2. Rehabilitation

The idea behind rehabilitation is that people commit crimes because they have some kind of mental ‘sickness’, one that can be cured through a process of rehabilitation.

Locking someone in a jail is a terrible method of rehabilitation, in fact it is likely to lead to the opposite. Criminals are removed from normal society and placed in a prison society filled with other criminally-inclined people. Here, they cannot really do any productive work, must fight to survive, and are routinely degraded and humiliated by both guards and other prisoners. It doesn’t take a genius to realize that precious little ‘rehabilitation’ is going to happen in such a setting, and that the more likely outcome is that the experience will make the person even more criminally-inclined than they were before.  

The only way I can think of to make someone less criminally-inclined is to somehow get them used to living and thriving in a non-criminal manner. Pushing them to perform the economic activities convicted criminals would need to engage in to pay back restitution to their victim could be a method for doing this.

3. Retribution

A sense of social reciprocity seems to be hardwired into most people’s brains. If someone does something nice for you, most people will wish that person well in return. But if someone does something nasty to you, then a lot of people will wish something nasty on that person in return. The process of making sure that something nasty happens to such people is called revenge, or retribution.

The Lex Talionis, or ‘eye for an eye’ style justice, is probably the most satisfying method of handing out criminal sanctions from the standpoint of retribution. If someone shoots you in the leg, you get to shoot him in the leg. If someone kills your mother, you get to kill him. This kind of justice is satisfying to a lot of people because of that strong sense of social reciprocity which they have.

Locking someone in prison for doing something bad is much less satisfying from a retribution standpoint. If someone kills your mother, he gets locked in a prison, funded by your money as a taxpayer. While prisons are horrible in their own ways, the lack of real reciprocity here makes the jail time punishment much less satisfying for victims.

4. Isolation

The idea here is that criminally-inclined people must be removed from the mainstream of society, because otherwise they might harm more people with their actions.

Jail time as a criminal sanction probably advances this objective more effectively than all the other objectives. The criminals are indeed removed from the mainstream of society and prevented from hurting people outside of the jail’s walls.

However, I suspect that we could think of a way to advance this objective in a much less expensive and less brutal way. In Old British Imperial times, many convicted criminals were sentenced to ‘transportation’, meaning a one-way journey to colonies such as America or, especially, Australia. This was the British government’s way of getting people they deemed socially dangerous out of the mainstream of British society. It was much less expensive than locking them up in jails, because with ‘transportation’, all the government really paid for was passage to the colony; no guards, secure buildings, free food or other amenities were necessary.

Of course, the modern world is much more crowded than the world of those times was, so old style ‘transportation’ wouldn’t exactly be feasible. However, there does now exist GPS technology that can track the movement and location of people. People under ‘house arrest’ are often fitted with a bracelet connected to a GPS. If they leave the vicinity around their house, the bracelet alerts the authorities, who then impose harsher criminal sanctions on the perpetrator as a result.

Now, imagine that a whole geographical area, much bigger than a single house, was designed as a ‘criminal area’. Convicted criminals, of a certain variety, could be sent to this area, instead of to jail, equipped with a GPS bracelet, and placed under ‘area arrest’. As long as they stayed within this area, the criminals could move around freely and engage in economic activities freely, just as the ‘criminals’ sent to America and Australia in the past could. If they left the area though, the bracelet would alert the authorities, who could then impose a harsher criminal sanction on the escapee. These areas could potentially become manufacturing districts on the outskirts of cities, or agricultural or resource extraction districts in rural regions. This would seem to be a much less expensive and much less harmful way of isolating criminally-inclined people from the rest of society than locking them up in jail.

5. Deterrence

The idea here is for criminal sanctions to be harsh enough to effectively deter people contemplating criminal actions from actually carrying through with those actions.

Locking people up in jail is indeed a pretty harsh sanction, and hence could serve as a deterrent. Most prisons are pretty horrible places, generally filled with the most unpleasant kinds of people. Most prisoners are bored, humiliated, mentally degraded, and fearful. In many prisons, there is a high incidence of prisoner-on-prisoner violence, especially rape.

The thing with deterrence though is that ideally it should just be a by-product of pursuing the other four objectives, not pursued for its own sake. If criminals are to be forced to pay restitution, to be forced into some kind of ‘rehabilitation’, to be on the wrong end of some retribution, and to be isolated from mainstream society, the sanction is probably already going to be harsh enough to satisfy the deterrence criteria sufficiently. As I argued above, jail time is not a very good way of pursing the other four objectives, and hence any deterrence that it achieves is achieved inefficiently.

In addition, jail time is an expensive form of deterrence. If we really want criminal sanctions to deter, ‘eye for an eye’ justice is the cheapest method.  

A Reformed Criminal Justice System

So, what might a reformed criminal justice system, one that relies much less heavily on jail time as a criminal sanction, look like? Well, it would depend on the variety of criminal under consideration.

1. Thieves and Fraudsters

The main sanction for theft and fraud should be restitution-based. The criminal should be forced to either return or pay back the value of the goods misappropriated to the victim, along with money damages for things like apprehension costs, pain and suffering, lost time, etc… For the first two offenses, the free-range restitution methods of either asset seizure or forced installment payment should be used.

For the third offense onward, it would be advisable to isolate this serial thief from mainstream society for a while. They should be sent to a designated area for thieves and fraudsters and placed under area arrest there for at least a year, or longer if they still haven’t been able to pay the restitution yet. Hopefully, there would be opportunities to do some honest economic activity in the area, which would help pay the restitution, and which perhaps might help with the ‘rehabilitation’ of this serial thief.

2. Occasional Violent Offenders

This category consists of people convicted of a violent criminal offense for whom violence is not a settled way of life, but just a temporary aberration. Many murderers and batterers actually fall into this category. For these people, the violent act in question occurs within the context of a very specific set of emotional, relational, and situational circumstances. The murder of a spouse might happen within the context of a very dysfunctional marriage. A severe battery might occur as an excessive retaliation against the deliverer of a verbal insult. None of this is to excuse the violence, but the circumstances surrounding the violence do have a major impact on the recidivism rate of that criminal (rates which, for this reason, are actually quite low for most types of murderers).

For these cases, the victim (or the victim’s family in the case of murder) should be presented with a few choices when it comes to selecting the sanction to be applied to the convicted criminal. The first is for them to invoke the lex talionis and to carry through with the ‘eye for an eye’ justice that it prescribes. The second is for them to invoke the lex talionis but to offer the criminal a pardon in exchange for a mutually agreed-upon sum of restitution money. The third, in case the criminal doesn’t mind having the talionic penalty applied to them too much, is for the victim to opt for the amount of restitution money set forth in a court-provided schedule of restitution payments for every kind of violent offense.

These three choices should only be available for intentional violent crimes. For accidental violent crimes, such as manslaughter, the lex talionis shouldn’t apply and only the third option, restitution from the court-provided schedule, should be available.

If the victim invokes and carries through with the lex talionis, but it can be proven beyond a reasonable doubt that the supposed criminal was wrongfully convicted, than the wrongfully convicted person or their family should have the right to apply that same penalty to the victim, or to receive the corresponding court-set amount of restitution money. This rule should help rein in the retributive wrath of the victims, especially in cases that aren’t nearly 100% certain. If the victim opted for restitution money, then they should have to pay it back to the wrongfully accused person, with the hopes of recovering it from the real criminal soon instead.          

Occasionally violent offenders who need time to amass the restitution money necessary should be sent to a designated area for occasionally violent offenders and placed under area arrest there until they are able to pay the restitution. Again, hopefully, there would be opportunities to do some honest economic activity in the area, which would help pay the restitution, and which perhaps might help with the ‘rehabilitation’ of this offender.

3. Serially Violent Offenders

Offenders for whom violence is a settled, continuous way of life, such as serial killers and serial sexual predators, need to be permanently removed from mainstream society in order to be prevented from doing any more harm.  If their conviction is very close to certain, they should either be placed under area arrest in a very remote area, such as a part of the Arctic, a remote mountain, or an uninhabited island, or if this is not feasible, just executed outright. The only exception should be if a private individual or group, volunteers to fully fund the incarceration of the offender in a high security prison.

Conclusion

My proposed system might seem bizarre to many, and it certainly is very different from the current system. But I submit that it advances the five main objectives of criminal sanctioning: restitution, rehabilitation, restitution, isolation, and deterrence, far more effectively and cheaply than the current system, which consists mainly of of locking criminals up in prisons.