The Machinery of Criminal Justice #4: Semi-Privatizing Criminal Justice

In yesterday’s guest-blog post on my new book, I explored the gulf between criminal-justice insiders and outsiders, the lawyers and laymen who see criminal justice very differently. The book explores in detail some of the human needs that criminal justice professionals overlook, such as the thirst for remorse, apology, forgiveness, and reconciliation. Today I’ll suggest that the root problem is the state’s monopoly on criminal justice, and solutions have to involve giving greater roles to victims.

Today, the right to punish belongs exclusively to the state, not the victim. Crimes violate the state’s laws and its interest in maintaining public order and social cohesion. The state does not settle for restitution and fines, as private litigants do, but imprisons and even executes wrongdoers. It exacts its justice quickly and impersonally to lock up the dangerous criminal and to deter him and others. All that seems to matter is the bottom-line number of years in prison and, to an extent, accuracy in discerning guilt.

The state-centered model assumes that cold reason should dominate criminal-justice decisions and exclude human emotions. But the cool logic of state-monopolized justice, to the exclusion of victims, conflicts with many people’s moral intuitions.

Why should the right to punish belong exclusively to the state? Disputes aren’t simply impersonal red flags that alert the government to dangerous threats. They wrong both the state and the victims. Crime has a human face, and that face deserves standing and a say in the matter. The victim or his representative seems naturally to deserve at least a partial right to pay back the wrongdoer.

That is a big part of why victims’ rights laws have proven so popular (though, as the book explains, they haven’t lived up to their promise and have often been hijacked by tough-on-crime groups such as prison guards). Plus, an important function of punishment is to defeat crimes by vindicating and re-empowering victims.

Empirical evidence confirms the intuition that victims’ views matter. When surveyed about concrete punishment scenarios, many people give great weight to the victim’s attitude and wishes, particularly for crimes involving property or personal injury. A democracy ought to do more to incorporate this widespread intuition about justice.

Professionals look at conflicts as costly disputes to be negotiated away. But in a sense, conflicts are important opportunities for the victim, defendant, and community to express themselves, listen, and learn. The parties have suffered personally and belong at the center of the dispute. Thus, criminal law used to resemble private law, in which tort victims may prosecute, settle, or waive their shares of claims. But professionalization has stolen conflicts from the parties, not only disempowering them but also muting the lessons taught by public criminal verdicts.

The law could surrender its monopoly on criminal justice by once again making more room for the parties’ interests and voices. That doesn’t mean transferring the monopoly to victims; prosecutors need to keep a leading role to ensure accuracy, equality, and fairness. But victims and defendants deserve greater speaking roles, both in court and in mediation. Judges and juries must filter the partisans’ voices, empathizing yet reflecting and keeping critical distance, to keep retribution from collapsing into vengeance.

The exclusion of any victim’s right is especially puzzling when the victim wishes to forgive and show mercy. The state may cap punishments to check bloodthirsty vengeance, but it has much less reason to symmetrically limit mercy. As long as the punishment suffices to deter, incapacitate, and condemn the seriousness of the crime, the state’s interests are satisfied. Any margin of retribution above that should be the victim’s to forgive.

We need to take seriously the metaphor of a debt wrongdoers owe both to society and to victims. As the victim suffered the direct loss and holds a share of the wrongdoer’s debt, he may either insist on payment or forgive his share.

The moral of the story is that, even if the state runs the process, human emotion deserves a seat at the table. Emotion isn’t just a raw, blind, unreasonable passion. It is in part cognitive and evaluative, and it can be taught.

Emotions are an important part of what makes us human and how we understand and evaluate our fellow humans’ actions. Crime excites fear and anger, empathy and indignation, sorrow and forgiveneness. Victims need our solidarity; wrongdoers merit our anger but also empathy for their plight and reasons for breaking the law. But neutral arbiters must reflect and balance competing emotional claims to distill justice. Laymen care whether criminal justice is emotionally sensitive or tone-deaf, and taking these concerns into account should bolster the law’s legitimacy.

But, as the book discusses in detail, too often lawyers hijack emotional discourse to serve particular political ends. In that vein, I canvas three recent political movements (victims’ rights, restorative justice, and therapeutic jurisprudence) that react against the impersonality of the criminal justice machine. Each movement is unbalanced, but each has something to teach narrow, cold, state-centered criminal justice.

In my final installment tomorrow, I’ll offer a few suggestions for how criminal justice could do much more to include victims alongside prosecutors, to blend the perspectives of both insiders and outsiders, lawyers and laymen.