Our criminal justice system suffers from a lack of focus. You can tell this form every college course which attempts to explain the purpose of prisons. Inevitably, the text will list a dozen or more conflicting theories on the purpose of imprisonment, ranging from punishment to rehabilitation to containment to nebulous concepts such as "social justice". Never will you see a text which takes a firm stand and promote a single viewpoint. And sadly, neither will most prison administrators. Which leaves our prisons attempting to fulfill several conflicting roles.

And this conflict carries over into our handling of sentencing. Unable to decide if the primary goal is "justice" or utilitarianism, we fluctuate between sentences designed to be just in some abstract sense and those designed to protect citizens.

A perfect example of this is a favorite topic of mine, the strange distinction we make between first and second degree murder (at least as those are defined in Maryland). First degree murder is basically reserved for premeditated murder and felony murder, second degree is for murder in the heat of passion. Now, from a perspective of justice, this makes sense. As we attach greater culpability to those who knowingly violate the law, we punish premeditated murder more harshly.

But from a pragmatic view this makes no sense. If we view prison as a means of keeping dangerous people away from the rest of society, we should punish exactly the opposite way. Those who can be so enraged that they kill people they would not have otherwise attacked are clearly more of a risk to humanity in general than someone who, for example, kills his wife for insurance money. Or, to draw an analogy, which is a bigger threat, a dog which was trained to attack and then killed someone on his owner's command, or a rabid dog which attacks anyone and everyone? If you answered the rabid dog, then why do we think premeditated killers should be punished more harshly than the human equivalent of the rabid dog?

Likewise our treatment of the insane shows this dichotomy. Justice dictates that those who cannot distinguish right from wrong should not be punished. On the other hand, if we want to protect people from harm, we would certainly want to imprison those who cannot tell what is right and wrong.

Finally, we have a similar problem with the death penalty. When deciding whether or not to kill someone states generally require aggravating factors, things which make the crime more repulsive, more morally offensive. This again is a remnant of the justice oriented approach, seeing punishment as "fitting the crime". A pragmatic approach would be much more simple. If he had committed multiple murders, or showed no remorse, or seemed inclined to murder again, then execution should follow. Execution is not judgment on a wrongdoer, it is simply a recognition that some people are so dangerous they cannot be trusted around humans. As we would kill feral animals which pose a threat whether it is their "fault" or not, we should kill feral humans.

And that is my basic argument, that our views of justice end up perverting the system. By trying to make sure that people receive what they deserve, we end up harming those who have committed no crime.

How so? Think of it this way. There is a criminal who has again and again stalked women, and shown every sign of intending to assault, rape, even murder a woman eventually. A just approach would say we cannot take that into account, his only crime is stalking. Yes, there have been multiple offenses, but the underlying crime is still minor. The pragmatic view would say anyone who commits multiple felonies even after arrest is unlikely to reform, so we should put him away for a long time, to protect society.

And, in this case, the pragmatic approach is clearly superior. By doing "justice" for the criminal, and punishing him lightly again, we end up releasing him yet again, and giving him another chance to harm or kill someone. By recognizing that he is a threat and should be kept away from people, the pragmatic approach protects society at the expense of more harshly punishing someone who has been given ample opportunity to change.

That is what I think should be our guiding principle in punishment, the protection of society. Neither punishment nor rehabilitation should be our primary concern. If we can rehabilitate that is a good thing, but it cannot be our primary concern. Likewise, if we can punish sufficiently to deter future offenses, then that is good as well. But our first concern is locking away these criminals to prevent them from harming others.

It is our willingness to ignore this primary function which leads to such craziness as putting dangerous murderers in mental hospitals where they can escape and kill again, or repeatedly jailing and releasing criminals until, after accumulating pages of arrests, they finally end up committing multiple murders.

Let us make this as simple as possible. We arrest criminals not for abstract justice, but because they have done something which has harmed a fellow citizen, either physically or fiscally. As they have broken the bedrock rules of human interaction, we imprison them to prevent them from harming anyone else. As humans are capable of reform, that imprisonment usually varies with the degree of their violation, and generally allow someone who has not offended before a second chance to prove themselves. However, once they have proved themselves incapable of interacting with others, we should either imprison them for life or execute them, again, not for justice, but as it is the only way to ensure they will not harm anyone else.

Fortunately, we have made some small steps toward a more pragmatic approach, despite the social and judicial pressures in the opposite direction. The "three strikes" rules in many states are a recognition that at some point we have to admit that nothing is going to stop a criminal from offending again. That is a pragmatic approach to punishment. Unfortunately, it is one fo the very few we have seen recently.

Sadly, we will probably not see a real reduction in crime until we adopt a more pragmatic approach.

POSTSCRIPT

There are two issues I need to address which did not fit into the main essay.

First, the fact that in the past we were no more pragmatic in our approach, yet crime was lower. In fact, in the early twentieth century, punishment got less severe, yet crime did not increase. And, the reason for that is quite simple. In the past, a strong stigma attached to arrest and conviction. The stigma itself acted as a sort of punishment, deterring those who would otherwise commit crimes. It was not strong enough to deter everyone, and so we still needed punishment, but it was strong enough to allow lesser punishments to be used.

Today we have much less respect for the law, and tend to be different to criminal histories, even glorify some criminals. Given this attitude, we cannot rely on social pressures, and must count on punishment alone to stop crime.

The second issue is my endorsement of pragmatism. I know I normally argue that principles matter and that "pragmatic" approaches lead to unwanted results. Thus it may seem strange to argue for pragmatism here.

The truth is, I am not truly arguing for pragmatism. I am arguing instead for something approaching utilitarianism. And, yes, it still can produce unwanted results if divorced from principles, but, in this case, I have considered the worst outcomes, and think they are acceptable.

In fact, the worst results are what I would propose if I were creating a system from scratch.

In my mind, any crime against persons -- short of murder --should carry a stiff penalty, say 10 to 20 years for a first offense. Crimes against property should carry something less, say 5 to 10. The second crime against property would then become akin to the first crime against persons. Finally, a third property crime, second crime against persons, or first murder -- homicide with incomplete justification could be turned into the equivalent of a crime against persons, if need be -- would all carry the death penalty. (Misdemeanors, if we keep that distinction, could be handled separately though they should be turned into felonies after a few repetitions. And I do not believe in many current crimes, such as drug possession/use or prostitution, as none of those crimes violate the rights of another.)

I know it sounds harsh, but criminals have, by their actions, admitted that they do not care for their fellows. If someone does not care about his fellows, he is a threat to society and its members. Rather than worry about his rights, we need to worry about protecting everyone.

If he knows he cannot live with others, then he needs to remove himself from society and go live in seclusion. If he insists on living with people and not following our basic rules, then in order to defend ourselves, I think we have every right to lock him away or kill him if he becomes enough of a threat.

So, in reality, I am not arguing pragmatism, just selling a toned down version of what I truly believe. I think my views are a bit too extreme for most to accept, so I offer up a slightly less extreme version. But should someone take my argument to its logical conclusion, and lock away all felons for life, I would not shed a tear.

UPDATED 06/11/2008

In replying to a comment, I realized I did not provide a link to earlier essays on a similar topic. In my essay "Compassionate Execution" I looked at the mroe pragmatic aspects of the death penalty. In  "The Death Penalty" I spend a bit fo time looking at the arguments used against the death penalty. In "The Ends Justify the Means?" I looked at the Thanos case and the inconsistent and dishonest way that the left argues against execution. And finally, in  "A Rational Approach to Punishment" I laid the groundwork for many of the arguments I made in this essay.

As always, you can find links for most of my articles in my blog index, now covering essays through May 5, 2008. The heading "The Law" being particularly relevant for essays relating to this topic. (I really should add subject tags to all my essays, but somehow I never seem to get around to updating my nearly forty pages of articles to do this.)