What is Criminal Justice?

There is growing evidence that some people possess a “bad” gene which predisposes them toward criminal behavior.  That has ignited discussions among criminologists and the legal community as to whether those people deserve leniency.

Formally, criminal courts, when sentencing someone convicted of a crime, are to consider three factors: the prospect of rehabilitation, the need for deterrence and the punishment for the deed.  Note that only the third factor concerns what would traditionally be a matter of justice – the wrong doer receiving what he “deserves” or in the ancient construct:  an eye for an eye.

A person’s mental disability or deficiency, therefore, would seem to be an appropriate consideration when assessing what the defendant deserves.  After all, the law allows insanity, in the sense of not knowing the difference between right and wrong, to be a complete excuse for a criminal act.

But there is a major problem with that perspective.  Everyone, shy of the insane, comes into the criminal system with some deficiency.  It could be an absence of competent upbringing, addictions, personality defects, etc.  But do any of these absolve the person of all responsibility in the sense of depriving him of free will, at least to some extent? 

If so, no one deserves punishment, deterrence is meaningless since choice would be illusory, and treatment for “antisocial behavior” is the only option.  Welcome to Aldous Huxley’s Brave New World. 

If justice does demand individualized consideration, would it be fair – just – to treat a person with all the benefits of intelligence, good education and a happy childhood the same as someone who is lacking in all such advantages?

No.  However, the legal system, as noted above, has more concerns than the delivery of justice. 

Deterrence is more than a term of criminologists.  The objective is to prevent/discourage certain conduct by warning those tempted to engage in it of the cost to be paid for doing so.  Yet the level of the penalty usually involves a calculation of what is fair or just.  Thus, the threatened punishment for speeding (a fine) is usually not the same for car theft (jail).

There’s yet another complication to consider in fashioning an effective deterrent.  How do people react to society’s efforts to discourage conduct since not everyone will act the same?  For some, societal disapproval will suffice; for others the risk of serous jail time is ignored (e.g., “I don’t think about getting caught” or “they’ll never catch me”).

So what about the defendant whose bad genes predispose him to anti-social, criminal conduct?  Justice does indeed require consideration of factors beyond the person’s conscious control.  But the community‘s welfare requires the discouragement of such behavior.  In that sense, a stronger deterrent would be required for the possessor of bad genes than for the person without.  The unafflicted is more likely to be scared away from bad behavior than the individual genetically inclined to engage in it.

In that regard, an effective deterrent (the penalty to be imposed) might need to be harsh (from the perspective of a normal wrong doer) in order to get the attention of the would-be gene-defective person.

Is that justice?  No.  But society is understandably concerned with more.