• This transition doesn't work. You needed to tell us at the start of the essay what you intend to write about, so that we know why we are suddenly reading about criminal punishment. Not a word has prepared us here for that change of topic.

• I don't know why the comparison you are making is helpful, because I don't know what you're trying to show me because you haven't told me. But as a reader starting from scratch with you, I don't find the comparison even balanced, let alone effective. I don't expect any society that uses corporal punishment to apply a mere beating where we would apply a life-truncating prison sentence. For offenses meriting decades of confinement, the corporal analog would surely be mutilation. Asking why we do not blind or dismember people who have committed serious crimes doesn't seem to me either mysterious or paradoxical.

Perhaps one reason the punishment of being beaten or whipped is viewed as less humane than imprisonment is that it would generally effect little societal change.

• I think you mean "would have little deterrent or incapacitating effect." I don't see any reason to think this bears on our sense of humane treatment. Mutilation is both deterrent and incapacitating, and therefore on your account should be thought more humane. Of course it isn't. Which tends to show that your argument is careless and wrong.

It is unlikely that a beating would make an individual less likely to commit a crime in the future, while it is often argued that imprisonment will. While in prison, an individual cannot commit crimes against society, and we are led to believe that once released, such an individual will likely be rehabilitated. But rehabilitation on a broad scale seems to be somewhat of a myth, and those who have been incarcerated for half of their lives, upon release, might even prove to be a greater danger to society than when originally convicted. This would severely undermine the argument that incarceration is more humane than beating because the punishment of incarceration benefits society.

• An argument that made no sense and should have been rejected for reasons given above is now twisted round again, to be used to show why imprisonment wouldn't be humane if it achieved few social purposes in relation to the pain it imposes. This point might indeed be useful, particularly if you made a familiar move and pointed out that the victims of the pain imposed by imprisonment are mostly innocent family members. But you don't even offer the predictable but sound arguments.

• Another abrupt unintroduced transition.

We value the ability of an individual to choose an attorney in a criminal or civil trial. Some might even strongly believe that a denial of this choice would be a violation of one's rights.

• Someone strongly believing this might point to text in the Bill of Rights that says so in simple words. What would someone not believing this point to?

But it appears that this practice might actually undermine the justice that we undoubtedly value in our legal system.

• Depending on your definition of "undermining" and "justice," I suppose, but only if you admit definitions that do not accord with constitutional doctrine, in which case this is a word game.

We believe it to be an important principle of the law that the outcome of a case for a particular party should depend not on the quality of that party's legal representation but on the merits of the case itself.

• We do? You have a citation to offer for a statement of this important principle of the law? Even one? I think "we" have always believed that the skill of trial counsel in particular, but also the skill of conveyancers and will drafters, to take just some obvious examples, made all the difference. Not only have lawyers wanted to support that belief, for obvious reasons, but our popular culture and oracles of public opinion constantly reiterate it. Legal doctrine, so far as I can see, is built around the assumption that better quality counsel working with more resources will tend to be more convincing to both judges and juries, and more effective in other forms of exercising social influence, than less smart, less well-trained, less disciplined lawyers working without resources. That's good, because if that weren't the law's assumption, the law would be indeed "an ass, a idiot."

Those who choose attorneys, however, usually do so in order to gain an advantage in court proceedings by buying better lawyering. O.J. Simpson would not have paid top dollar to assemble the "Dream Team" if those lawyers did not stand a better chance of getting him acquitted. This significantly tilts the scales of justice in favor of the rich and powerful, who are able to select the most skilled lawyers. If we are to accept the fact that the law favors those who are able to afford better lawyers in this way, we must accept the notion that justice is not blind and that justice will not be done in many cases.

• Is there an honest person of intelligence and discretion above the age of six who hasn't accepted those facts?

• This is a conclusion? It seems more like a pair of truisms. What's the significant, tenable other side of either? By what process of starting from premises, adducing evidence and answering objections did you reach them? This draft has neither clearly stated thesis nor development to conclusion. Material from the first draft was reframed, with the apparent intent of coming around objections I raised, but the basic problem you had last time, which was the absence of a clear thesis for the essay to develop, remains the central problem of this draft too. Outlining, and editing the outline carefully, is valuable for developing a thesis once identified, but the central statement, the theme of the essay as it would be the theme of a sonata movement, must come first. The one you want can be stated in a single graceful sentence.

Misplaced Values in our Institutions

Criminal Punishment

The Choice of Attorney

Conclusion

• I'm not sure how you derived from Thurman Arnold the view that "success in life is dependent mostly upon chance," and you don't say. But from there, we have paragraphs whose topic sentences are "In order to effect social change, we must first assess our current values to determine whether these are truly the values that we should seek to protect," and "We seem to get so caught up in what society tells us our values ought to be that we never truly consider whether these values actually make sense to us." The big lesson coming from the idea that where we get is mostly chance is that we should get in touch with our real values? I feel as though I've fallen into a vat of liquified language in a greeting card factory. At any rate I haven't learned much.

• I think you need to take a close look at what it was you wanted to write about. I don't think it was Thurman Arnold, who hasn't in fact made much of an impression. And John Rawls was a pretty late arrival there, in the conclusion, so I don't think he's the subject. "Values," I think, is a little too indistinct to be your idea. But you want the thesis that begins a strong first paragraph and backs a tightly-reasoned conclusion.

Determining What Notion of “Justice” We Should Protect

-- By KregKatoski - 27 Feb 2009

Advantage in society is not a right

If we adopt Thurman Arnold’s view and assume that success in life is dependent mostly upon chance, this should indeed affect the way in which we look at our role in society. We tend to believe that we have a “right” to what we own and feel we have earned, though this is obtained simply by the luck of the draw. But is it just that we should fall into such a position of success while others suffer through no fault of their own? I do not believe it is, and if we are to seek justice, this ought to affect what we do with our lives and how we view the policies of our institutions with respect to individuals in varying circumstances.

Assessing society’s current values

In order to effect social change, we must first assess our current values to determine whether these are truly the values that we should seek to protect. It seems that in terms of values, we do not fully believe, as Holmes suggests, that “things are what they do.” Rather, we still tend to believe in many instances that things are what they signify. For example, we would find it inhumane for a criminal to be beaten with a cane as punishment for a crime, while we would scarcely flinch in sentencing him to 25 years in prison. Though I do not have experience with either form of punishment, I propose that the vast majority of the population would prefer to be subjected to the former rather than the latter. Why, then, is the preferable punishment considered less humane? What purpose do our values serve if they stand in opposition to desires of those it would seem they are intended to protect?

The role of institutions in shaping our values

We seem to get so caught up in what society tells us our values ought to be that we never truly consider whether these values actually make sense to us. We may use these core values as the basis for justifying other beliefs, but we rarely ever question the values themselves. We perceive the spectrum of values imposed on us through our institutions as the culmination of hundreds of years of rational thought and experience as to what is and is not just, when, in reality, the emergence of such a system of values is far less organized and systematic than we would like to believe. As Arnold suggests, the elements of consciousness and choice that we assign to our organizations tend to be misplaced, leading us to assign greater significance to their social output than may be warranted.

Deciding upon a conception of justice

But if the values imposed by our institutions are inadequate, how then should we choose what to value as a society? Here, we might employ a method similar to that used by John Rawls in postulating his “Justice as Fairness” theory, in which he seems to borrow much from Arnold's ideas about our place in society resulting largely from chance. He suggests that justice would be served by individuals deciding upon principles to govern society behind a “veil of ignorance,” which would prevent them from knowing their place in society, as well as any personal or familial attributes. This “veil of ignorance” might allow us to better decide what values we ought to place importance upon in our society, helping us to set aside our biases, at least in theory. Once we establish what values are of importance to us and what our conception of justice truly is, we might be able to pursue goals in furtherance of such a notion of justice, ultimately reforming our institutions to better account for the disparity in fortune assigned by chance.

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