• I think this is a fine essay, but I think you'd improve it by focusing further on drunk driving and leaving the death penalty discussion out altogether, or with not much more than the brief mention midway through. Where you're going implies enough about capital punishment that you don't need to spend ink there. On harm reduction as opposed to punishment, there's a great deal to say. And as your pal Whitmire observes, the most important part, which you haven't given yourself space for, is how to keep cowards like him in business by teaching them ways to talk sense that aren't political suicide. (Even, one hopes against hope, in the hardest place on earth in which to get a hearing for good sense, which experience shows is somewhere between Louisiana and New Mexico.)

A Pragmatic Criminal Justice System

-- By StephenRushin - 15 May 2009

Introduction

Retribution and utilitarian goals seem to play competing and complementary roles within our criminal justice system. When I first entered law school, I perceived our criminal justice system as a tool for carving our proportional punishment for dangerous criminal offenders. After reflecting on a full year of law school, I have no doubt that our criminal justice system is far too focused on punishing harms with proportional retribution, when we should instead focus administering punishment that best serves the social welfare. The purpose of the justice system should not be adherence to the nebulous concepts of fairness and equality, but pragmatically protecting society through smart penalties and criminal rehabilitation.

Why Should We Focus on Social Good Over Retribution?

The concepts of social good and retribution are not inherently conflicting. In fact, in many cases a proportionally retributive punishment that matches the harm caused by an action protects society by deterring future criminals and removing potentially dangerous individuals off the streets. Nevertheless, it is virtually impossible to judge the relative guilt, blameworthiness, or dangerousness of an offender without imagining how it feels to be in her shoes. An example of this can be seen in The Queen v. Dudley and Stephens, where the seemingly ritualistic insistence on administering a trial parallels the conflict between retribution and social good.

Stephens, Dudley and Brooks were, almost certainly not a threat to other people within English society. Their actions were taken from a position of extraordinary hardship and out of absolute necessity in order to save their own life. There is no doubt that if they had not taken Richard Parker’s life, they would have died. There is also no doubt that if they had waited, Richard Parker would have died.

The English court does not seem to be hoping to serve the social good by prosecuting Stephens and Dudley; almost any person in that situation would have done what was necessary to stay alive, regardless of the legal precedent. Ultimately, though, the court seems to operate not under a concern for social good, but a desire to punish the men for the ultimate result of the action, serving a formalistic view of justice. Although this is an older example, we can still see this focus on retribution at the expense of social welfare today in our criminal justice system, from the use of victim impact statements in death penalty case, to the punishment requirements for certain offenders such as drunk drivers.

Alcoholism and Drunk Driving: A Case Study of Social Welfare Over Retribution

While working in the Texas Legislature two years ago, I had a casual discussion to Texas State Senator John Whitmire, the Chair of the Senate’s Criminal Justice Committee. I had read reports about Whitmire’s support for some highly questionable criminal justice measures, so I was curious how he would like to see our justice system change in the future. His answer took me off guard; Whitmire told me that the most important change that Texas could make to save money and serve justice is to lessen the penalty for drunk driving. His argument was simple: It just doesn’t make sense to focus on retribution at the expense of protecting society. The State of Texas spent millions of dollars each year incarcerating convicted drunk drivers for years at a time. And all the while, convicted drunk drivers in Texas are suspect to a variety of programs such as impounding their automobiles and requiring ignition locks, but almost never alcohol rehabilitation. Nevertheless, the level of recidivism among convicted drunk drivers is one the highest of any crimes.

The solution, according to Whitmire, is to stop demonizing drunk drivers with harsher penalties, and instead focus on alcohol rehabilitation to prevent drunk driving in the future. It seemed like a simple solution, but one that he said he could never publicly support.

“It would be political suicide,” he suggested.

And I knew exactly why such a measure was unimaginable. Working in another office at the Texas Capitol, I had met with my fair share of advocacy groups such as Mother’s Against Drunk Driving. There is a strong emotional appeal presented by these types of organizations, advocating for harsher punishment for certain types of criminal offenders. Politicians hope to appear tough on crime by deterring future criminals with harsher penalties. Perhaps the death penalty in my home state of Texas is a stark reminder of how a focus on retribution can lead to highly questionable, and irreversible penalties.

The Death Penalty as the Ultimate Retributive Punishment

The death penalty stands as the ultimate example of an unnecessary, immoral, arbitrary, and permanent penalty offered by our criminal justice system. And yet for a penalty so final, there seem to be very few justifications premised on social good. The death penalty does not bring back those we have lost. It does not protect society from dangerous criminals anymore so than life imprisonment. And the death penalty costs substantially more in taxpayer money than life-imprisonment without the possibility of parole. The only reasonable justification for the death penalty is that we as a society believe that it either deters future would-be murders, or it serves some type of retributive goal. Unfortunately, evidence is mounting that the deterrent effect of the death penalty is highly questionable.

The death penalty represents the ultimate bastion of retribution, and our justice system allows for this seemingly arbitrary process to go on through mechanisms like secret jury deliberations and victim impact statements. And a certain segment of our population pays the ultimate price for such a fixation on retribution.

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