Mr. Ackland on the work of The Hon. David Levine Q.C.

http://www.smh.com.au/opinion/triumphs-and-disgraces-of-law-and-order-20090402-9kwo.html?page=-1

Mr. Richard Ackland has an opinion piece in today's Sydney Morning Herald on The Hon. David Levine Q.C., a former barrister and Supreme Court judge who is the Chairman of N.S.W.'s Serious Offenders Review Council (S.O.R.C.), which

has the job of recommending the classification and placement of about 700 of the state's most serious prison inmates. These are people who typically have minimum prison sentences of 12 years.

Mr. Ackland reports that

After three years of SORCing, Levine questions how much good is being done by keeping a lot of prisoners locked up for longer and longer. "I fail to see the purpose that is served by any sentence longer than 20 years." There are some notable exceptions.

Only “some notable exceptions”? The problem is his rule, not the exceptions. Does Mr. Levine seriously think that it is not a fitting rule that murderers, rapists and other criminals of similar notoriety should not in general, as a matter of strict legal justice, serve more than twenty years in gaol? Indeed, for many of these offenders a custodial sentence would be inadequate retribution; in many of these cases the death penalty ought to be imposed.

Next, Mr. Ackland brings up

the case of Andrew Kalajzich, who was convicted in 1988 and sentenced to 28 years for the contract killing of his wife. He still has more than 2½ years before he is eligible for parole. "What is the point of it?" Levine asks. Will the extra years enhance Kalajzich's redemption, rehabilitation or make society safer?

So the offender is a man who has murdered someone—it makes no difference whether the instrument he uses is the murder weapon or a contract killer—and yet Mr. Levine appears to think that Kalajzich should not even serve twenty-eight years in gaol. If we as a society were serious about keeping the scales of justice in balance then Kalajzich should have hanged, yet Mr. Levine—who worked as a jurist, whether judge or barrister, for almost forty years—can see no point in Kalajzich even serving a (manifestly inadequate, but better than a lesser sentence I suppose) full twenty-eight years in gaol. Mr. Ackland asks rhetorically “[w]ill the extra years enhance Kalajzich's redemption, rehabilitation or make society safer?”, but he seems to ignore a fourth—but the most important of all—criterion (or at least, ignores the key aspect of the redemption criterion): the need for the offender to pay in full his debt to society, a debt that requires that he offers adequate satisfaction in retribution for his crime, which was clearly among the most serious of all crimes. The essence of justice is to render to each what he is owed (and clearly Kalajzich owes a good deal more than just twenty-eight years of his life when he has taken life itself away from his own wife) yet this seems not to matter greatly, or even at all, to Mr. Ackland, and whether or not it matters to Mr. Levine it seems that, if indeed it did matter, he thinks that somehow a mere twenty-five or so years for murder is enough to satisfy justice.

Mr. Ackland goes on to say that

Levine's point is that there is a growing proportion of prisoners whose departure from jail should be expedited but under the current punitive penal model, which has always been the case in NSW, there is fat chance of that.

But since reward and punishment are simply justice as applied to the doers of good deeds and bad deeds respectively, it is entirely proper that the justice system’s model should be punitive and penal. Sadly though, it is questionable how widely within the present-day legal fraternity one would find assent to this basic principle of true justice; as I have noted in other posts, the utilitarian, positivist ‘restorative justice’ philosophy is very much in vogue now. Certainly one expects that there would be much in this philosophy with which Mr. Ackland and Mr. Levine, both of whom are fairly high-profile and influential jurists, would agree.

Reginaldvs Cantvar
Feast of Our Lady of Compassion, A.D. 2009

A comment on restorative justice

http://cardinalpole.blogspot.com/2008/10/more-on-restorative-justice.html

Here is a comment that a made in my “More on 'restorative justice'” post:

***

Mr. Redekop and Mr. Wright,

Thank you both for your comments.

Firstly, to address your points, Mr. Redekop:

1) When I said that justice is essentially about getting what one is owed, that was not just ‘my argument’—that’s what justice is! The first problem with restorative justice is that it tries to include something in the meaning of justice that is really external to it. Given that, strictly speaking, justice is a matter of reward and punishment, it is clear that to withhold either a due reward or due punishment would be an injustice in itself. Such an injustice would be permissible according to the criterion I mentioned in the original post, namely, the injustice may be permitted if, by doing so, one expects to avert a greater evil or bring forth a greater good.

2) As to the relationship between offender and offence, the only relationship that is directly relevant is whether or not the offender was morally responsible for the offence. If the (alleged) offender were “confused, disturbed, or mistaken”, then these are clearly circumstances that excuse from culpability.

3) As to the case of murder, the amount of time that the victim might have had left to live is totally irrelevant; what matters is that his life was taken, not the quality or quantity of his life remaining. This is a most curious objection for you to raise.

4) The different circumstances that you enumerate for consideration in sentencing—whether the offender is a hardened criminal, or how wealthy he is if the penalty is to be financial—merely show that sentencing is difficult. But difficulty is no reason to abandon justice.

5) The case of a young offender is a case where I would not necessarily have a problem with imprisonment being commuted to some lesser sentence, for the reason I have mentioned already—namely, that a greater good could be procured. All I am asking is that people recognise that withholding the due punishment is, by definition, an injustice in itself.

6) You appear to hold to the ‘integral humanist’ view of the State, in which the State has a very limited role. I, however, adhere to the traditional view of the State as having the common good as its proper end, and is therefore entitled to investigate into what you call “the true virtue and happiness of all the other persons involved”.

7) This point is really the most important one: “how can a second harm make up for the first?” If one adheres to the restorative justice ideology, than retribution clearly makes no sense in itself. But justice is a metaphysical concept, not at all a utilitarian, pragmatic one. It is undeniable that, metaphysically, a second harm balances a first harm, just as a just wage metaphysically balances an hour’s work. Your example of the broken arm is completely inappropriate, since it deals with an accident, and with two harms being inflicted on the same victim.

8) Your charge that “it is clear that efforts to define the right to punish in moral terms fail to identify clearly the criteria for this right” is completely unfounded; the criterion is simply the due relation between crime and punishment.

9) Powerlessness, poverty, class structure and so on are quite secondary circumstances. The poor and powerless are still responsible moral persons, and moral responsibility is the key criterion for determining culpability.

Now Mr. Wright,

1) You say that “In restorative justice it is reparation, not rehabilitation, that trumps punishment, altough many offenders have themselves been victims”. But I have to ask then: what is your idea of reparation? Reparation means satisfaction, expiation, atonement, and so on. Punishment is an excellent form of reparation.

2) You ask: “can the state be justified in causing deliberate harm to one of its members, even a wrongdoer”? The answer is yes, of course, since this harm is due to the offender because of his transgression.

***

Reginaldvs Cantvar
All Souls’ Day, 2008 A.D.

Letters on the death penalty

http://www.smh.com.au/letters/?page=fullpage#contentSwap1

Two letters have appeared in today’s Sydney Morning Herod, both written in opposition to the execution of the Bali bombers:

The crime of the Bali bombers is heinous ("Rudd faces pressure on death penalty", October 21). Their lack of remorse is (to us) a shocking indictment of their religious beliefs. They need to be imprisoned at least until they are no longer a danger to anyone who happens not to be a Muslim. But it would still be wrong - and bad public policy for Indonesia - to execute them. Indonesia and Australia both need governments that are better than murderers.

Geoff Mullen McMahons Point

The impending execution of the Bali bombers will achieve nothing. Australia is opposed to the death penalty, even when fundamentalist Muslims slaughter our families and friends. An eye for an eye is not justice. Let's solve the problems that created these crazed jihadists, and not condone state-sanctioned terrorism.

Michele Grant Ocean Shores

The first one’s assertion that “[t]hey need to be imprisoned at least until they are no longer a danger to anyone who happens not to be a Muslim” is very telling. Clearly Mr. Mullen sees no place for punishment as an end in itself. Most people, one suspects, would not yet be infected deeply enough with utilitarianism as to think that the terrorists ought not to be gaoled for life, even if people oppose the death penalty. But one infers from his letter that Mr. Mullen views imprisonment as nothing more than a means to ends such as crime prevention.

The second person’s assertion that “[a]n eye for an eye is not justice” is most curious; does he or she really not think that there is a due relation between the crime of putting someone’s eye out and the punishment of having the offenders eye put out? Let me hasten to add that I do not approve of such disfigurement as a punishment in the present day, but ‘an eye for an eye’ is certainly true in principle. Furthermore, this person’s utilitarianism is made clear in his or her plea to “solve the problems that created these crazed jihadists, and not condone state-sanctioned terrorism”. So for him or her all that needs to be done is to prevent such crimes from happening in future—a principle that it at the heart of the insidious ‘restorative justice’ ideology.

Unfortunately, neither letter writer elaborates much on the logic underlying their opposition to the death penalty. (For what we are always assured is a ‘principled position’, there sure seems to be a lot of emotionalism involved.) So let me do their work for them. As far as I can tell, there are four possible reasons to oppose the death penalty (though none of them stacks up, of course):

1) One’s definition of justice: the essence of justice is that each person gets what he or she is owed, so that good deeds are appropriately rewarded and bad deeds are appropriately punished. Thus punishment is an end in itself. But the ‘restorative justice’ crowd tries to re-define justice, smuggling into it things that are distinct, indeed separable, from it e.g. rehabilitation, deterrence. But such ends, though worthy, are not essential to justice, hence the death penalty is not opposed to strict justice, but is in fact the very satisfaction of it.

2) The ranking that one accords justice in the hierarchy of virtues: traditionally, justice is one of the cardinal virtues—a virtue on which all other virtues hinge. Death penalty opponents invert the traditional hierarchy and demote justice to a subordinate goal, if indeed it is even any goal at all for them.

3) The due relation between crime and punishment: this is another serious weak point for the death penalty opponents. It is absurd to deny that there is a due relation between taking someone’s life unlawfully and having one’s own life taken in consequence. And the problem is that whereas one need not observe ‘an eye for an eye’ literally for other crimes, in the case of murder there is simply no other combination of temporal punishments that can balance the scales of justice. Though of course, an extreme ‘restorative justice’ supporter would deny that a due relation between crime and punishment is even necessarily desirable.

4) The nature of the act of execution: one might try to argue that, even if execution satisfies the first three criteria, there is something intrinsically wrong about taking someone else’s life. But it is not intrinsically evil to will to take someone else’s life and to carry this out, so long as one does so in one’s capacity as an organ of the State rather than in one’s capacity as a private individual. Otherwise it is inconceivable that there could be any such thing as a just war, though extreme humanistic pacifists do indeed deny this. Execution is not ‘state-sanctioned murder’ or ‘judicial murder’, since the State has the rightful authority to execute its subjects.

Reginaldvs Cantvar
22.X.2008 A.D.

More on ‘restorative justice’

An article appeared in yesterday’s Sydney Catholic Weekly elaborating on the recent awarding of an honorary doctorate to Mr. Terry O’Connell for his work in ‘restorative justice’, so I thought I might elaborate a little on my own objections to this ideology. Now the article notes that

[Mr. O’Connell] has done extensive work in broadening focus for law enforcers by conferencing with all parties affected by crime: victims, perpetrators and their families, in order to achieve understanding and reconciliation on both sides.

Well and good. And the article notes further that

His work with criminal offenders has been accompanied by a remarkable decrease in repeat offences among those offenders.

Excellent. Deterrence, rehabilitation and ‘closure’ for victims are all laudable outcomes. But they are distinct from and subordinate to justice, with ‘justice’ essentially being that each person gets what he or she is owed, so that good deeds are appropriately rewarded and bad deeds are appropriately punished. There is a hierarchy of virtues, and all other natural virtues hinge on the cardinal virtues of justice, prudence, temperance and fortitude.

Now withholding adequate punishment from an offender would be an evil in itself. But we know that, as Pius XII taught in his allocution Ci Riesce, repression of evil is not the ultimate norm for the State; the State has the right to tolerate certain evils, subject to the norm that it only permit an evil in order to bring forth a greater good or avert a greater evil. So it can indeed be the case that the State might licitly forgo the satisfaction of justice through punishment, whether by incarceration or whatever, in order to rehabilitate an offender, if it judges that the value of rehabilitation would exceed the evil of the offender not receiving the punishment that he deserves.

So my problem is not necessarily with ‘restorative justice’ as a set of practices and policies, but as an ideology. That is because ‘restorative justice’ as an ideology dictates that rehabilitation always trumps retribution, so that if there is a conflict between the two, rehabilitation wins out. Yet at least in the case of pre-meditated murder, the value of rehabilitation cannot exceed the evil of withholding the death penalty, since it is a comparison of the value of one life with another life; what the offender took from the victim cannot be restored. Even as the offender might make some contribution to society through his rehabilitation, it is inconceivable that this contribution could outweigh the injustice of the offender’s on-going enjoyment of what he took from his victim. The only circumstances in which I could imagine the State licitly withholding the death penalty would be in the case of a dissident with a large number of supporters who would all rebel en masse if the dissident in question were put to death. But even in this case it is only a matter of delaying the execution until the situation has settled down. If justice is a cardinal virtue, on which both pagans and Christians should be able to agree, then the satisfaction of justice must take precedence over rehabilitation in the case of wanton murder.

(And MgS, you are most welcome to have your say here.)

Reginaldvs Cantvar
Feast of St. John Cantius, Confessor, 2008 A.D.

On ‘resorative justice’

http://www.cathnews.com/article.aspx?aeid=9350

According to CathNews yesterday,

Australian Catholic University has awarded former Wagga Wagga police officer, Terry O'Connell, with an honorary doctorate for his ground breaking work in restorative justice in Australian communities and abroad.

[… Mr. O’Connell] has done extensive work in broadening focus for law enforcers by
conferencing with all parties affected by crime: victims, perpetrators and their families, in order to achieve understanding and reconciliation on both sides.

No doubt rehabilitation and crime prevention are worthy ends, but they are distinct from and subordinate to the cardinal virtue of justice (the cardinal virtues being those on which other virtues hinge). Punishment is every bit an end in itself as a just wage for an hour’s work is an end in itself. Considerations on whether punishment can serve other ends, or whether it should conflict with those other ends and not be meted out at all, are secondary. Let the justice system dispense justice before anything else.

(And I note that Mr. O’Connell now works as “Australian Director of the International Company Real Justice”. ‘Real justice’. What a joke.)

Reginaldvs Cantvar

On revenge and retribution, plus: a request to MgS

It appears that in a recent post I did not make myself clear on the meaning of revenge and of retribution. My contention was that they have the same etymological roots. ‘Revenge’, as we know, means ‘getting someone back’, while ‘retribution’ means ‘pay-back’, just as ‘contribute’ means ‘pay with’, ‘distribute’ means ‘pay among’, and so one. But just as, say, ‘terrific’ and ‘terrible’ have the same roots but opposite meanings, so it is that revenge and retribution are not synonymous. Revenge involves exacting personal pay-back, while retribution is rightly the State’s impartial imposition of a due relation between crime and punishment. A private individual might try to exact retribution, but this would be unjust, since no-one should be a judge in his own case and no-one should usurp the State's authority.

As an illustration of this distinction, consider the following example. Assume two individuals, William and Edward, with the same level of wealth, identical utility functions and a constant marginal utility of income, so that each individual values a gain or loss of $x the same as the other does. Now suppose that William steals $x from Edward. (Suppose further that he does so in such a way as not to cause any harm beyond that stemming from the loss of the $x i.e. there is no question of additional ‘pain and suffering.’)

Now the ‘restorative justice’ crowd would demand only that the $x be restored to Edward and that William be reformed. Revenge would seem to require that an additional $x be transferred to Edward (or at least that Edward be the one to exact the money from William). But retribution requires only that $x in addition to the original $x be exacted from William; to whom it goes is a matter of indifference (though arguably it should go into deterrence and rehabilitation funding. I have never denied that deterrence and rehabilitation are worthy ends, only that they are subordinate to justice.) The ‘restorative justice’ crowd could approve of additional money being exacted from William in addition to the original $x only if it could serve as some kind of behavioural disincentive.

Now retribution is a complex variable for the courts to determine. That is where it is good to know that God is just. If the retribution meted out by a judge is excessive, then the offender may offer up the excess in satisfaction for other sins. If too lenient, then the remaining temporal punishment will be exacted in purgatory. But there are at least two cases where retribution is quite straightforward. One is the simple financial example just cited. The other is the case of culpable, pre-meditated murder. Execution is the only adequate punishment. Think of it this way: a punishment can either be excessive, adequate or too lenient. Now no-one would say that depriving someone of his life for depriving another of his life is too lenient. As regards the possibility of it being excessive, to paraphrase Kant, no murderer has ever gone to the gallows protesting that ‘this punishment is excessive!’ People would laugh in his face. So capital punishment is an adequate punishment for murder.

Now the necessity of punishment presupposes that one accepts that justice is a metaphysical concept that is illustrated perfectly by the image of the ‘scales of justice’. But if one rejects this and therefore rejects retributive justice, then one ought to conclude that if punishment for bad deeds is unnecessary, then reward for good deeds is unnecessary, too. Reward is the ‘good deeds’ side of justice, while penalty is the ‘bad deeds’ side. Strict legal justice demands punishment as an end in itself and reward as an end in itself. Take the concept of a just wage. Presumably the ‘restorative justice’ crowd has no problem with workers being denied a just wage (a ‘just wage’ being the value of their marginal product, as the economists say). After all, there are solid utilitarian reasons for withholding a just wage, chief among those being the downward pressure on unemployment. But an employer who tried to rationalise an unjust wage would be dismissed as a thief. The implication for the anti-retribution crowd hardly needs spelling out. They are either consistent, and are therefore no better than thieves, or they are inconsistent, treating good deeds and bad deeds with a different calculus, and are therefore guilty of a double standard. The more I think about it, the more I understand how incoherent and unjust the ‘restorative justice’ ideology is.

So I ask you MgS (and any other anti-retribution folk): what, to you, is justice? A thumbnail sketch will do; I have avoided the jargon of commutative justice, vindicatory justice, and so on, myself. What does it mean to treat justly a good deed or a bad deed? And who are the major figures in this school of thought?

Reginaldvs Cantvar

How to write an article on a matter of justice without examining too closely whether justice has been served

http://www.smh.com.au/news/national/judge-rules-youths-be-taken-out-of-adult-jail/2008/09/19/1221331207054.html

Ms Adele Horin shows us the way. In an article in Saturday’s Sydney Morning Herod she reported the following:

IN A victory for prisoner rehabilitation, a Supreme Court judge has ordered three young offenders be removed from adult jails and returned to juvenile detention centres by Monday to complete their sentences.

Now here’s a quick concordance for you: the word rehabilitation appears seven times in the article, while the word justice appears six times, but only ever as part of a name, such as the Department of Juvenile Justice or when referring to Mr. Justice Johnson, the judge in question. The word punishment appears only once, and also only as part of a name (‘punishment cell’). So Ms Horin’s focus is exclusively on rehabilitation, which is distinct from and subordinate to strict legal justice. No doubt she adheres to the notion of ‘restorative justice’, which usually ends up being no kind of justice at all, and would have been foreign to not only the Catholic authors but also the great figures of pagan antiquity and the more clear-thinking luminaries of the so-called ‘Enlightenment’, such as Kant. And yet this mangled conception of justice has infested the judiciary in Australia and presumably much of the West.

Ms Horin also uses at least one dodgy journalistic technique. Early in the piece she says that the youngsters in question (all of whom were eighteen or over)

were transferred to adult jails in April despite court orders they serve their sentences in a juvenile facility until age 21 because of special circumstances that can include developmental delay, mental health issues, and rehabilitation prospects.
(my emphasis)

Presumably she lists them in this order so as to elicit our sympathy. Yet Ms Horin leaves the reader to infer from the following point:

[Mr. Justice Johnson] said consideration had not been given to the circumstances of the three, in particular, "the powerful body" of evidence that pointed to their progress in rehabilitation, and education and training, in the detention centre.

that in fact rehabilitation prospects were just about the only circumstances considered and that there was no question of psychological problems (which is surprising, given how liberally ‘psychological problems’ are invoked these days, especially with regard to the grounds for abortion). This is especially likely given that presumably Ms Horin would have specified any such circumstances if there had been any, in order to heighten the reader’s sympathy.

(And, predictably, Ms Horin managed to smuggle a purported ‘human rights breach’ into the article, when she quotes a psychoanalyst saying that

it appeared young offenders' rights had been compromised due to management putting pressure on psychologists to change their reports.

Someone who is not afraid to ask the hard questions of justice, however, is Dr. David van Gend in yesterday’s Sydney Catholic Weekly.

http://www.catholicweekly.com.au/article.php?classID=3&subclassID=44&articleID=4929&class=Features&subclass=Feature%20articles

In connection with the imminent Victorian abortion free-for-all, he wonders

[b]y what wild superstition do legislators believe that a 24-week baby is a citizen deserving of all protection when wrapped in hospital blankets, but mere human waste when wrapped in the womb? I have held a baby born at 24 weeks, and if somebody attempted to assault her I would defend her. By what principle of justice do legislators conclude that there should be no restraint on adults who would assault the same baby when trapped in the womb?

I wonder whether the abortionist who was trying one minute to kill Miss Gianna Jessen and then signing her birth certificate the next (http://www.billmuehlenberg.com/2008/09/09/on-burning-babies-alive/) asked himself these questions?

Reginaldvs Cantvar

Do you want the good (Cath)news or the bad (Cath)news?

Firstly, the good (Cath)news:

Apparently His Eminence Cardinal Pell had some involvement in the A.L.P.’s abandonment of its policy unambiguously in favour of a Bill of Rights. This is a most welcome development, and one that invites some reflection on the notion of ‘human rights’.

The Christian acknowledges that everything he has is from God, and recognises that God is entitled, therefore, to impose such duties as might please Him. From these duties we can infer corresponding ‘rights’, e.g., ‘thou shalt not kill’ implies a right to life (with certain qualifications, as I shall examine shortly). But the basis for ‘human rights’ is rather shaky in the secularist world-view. It seems that for the secularist, ‘rights’ are not ‘rights’ as a Christian conceives of them, but that the term in fact has no absolute foundation but is just a convention for referring to some of the agreed implications of the principle that we should all be able to seek pleasure, constrained only by the pain that obtaining our pleasure might inflict on other pleasure-seekers (the harm principle). This, of course, is basically preference utilitarianism, and seems to me to be the only internally coherent (though nonetheless false) atheistic world-view, since humanism, for instance, asserts things like the uniqueness of mankind and ‘man as the end of all things’, which have no basis in the (false) evolutionary world-view, since man is just one species among many, and many of these other species can feel pain too (speaking of pain, that’s why it’s call ‘preference’ utilitarianism, since some people, namely sadists, quite enjoy pain, thankyou very much). Now the harm principle is nonetheless every bit as arbitrary as any humanist principle, but as an ordering principle for society, it has proven quite good (in the U.S.A.) at preventing complete anarchy, by enshrining rights in law. But nonetheless, it is a completely inadequate way to order a Christian society, since some who cannot feel pain enjoy, nonetheless, a right to life (as well as all the rights that the fully sentient enjoy) because of their innate capacity for God—their ontological dignity.

Now for the bad (Cath)news:

We see that Rev. Fr. Frank Brennan S.J. has reiterated his universal, in-principle stand against the death penalty. This goes by the name of the 'seamless garment approach', the idea that abortion, euthanasia, the death penalty and unjust wars are all to be rejected for being anti-life (ignoring the fact that only innocent life has a right to life). It would be regrettable if any readers inferred from this that the Catholic Church has somehow changed Her ancient teaching on the matter, especially if an alleged change were part of a compromise ('we'll oppose the death penalty if you'll oppose abortion') with secularism, meeting it on secularism's terms as so many clerics are keen to do. See Dr. Peter Chojnowski’s essay at the American S.S.P.X. home-page (in the ‘against the sound bites' section, as I recall) for the timeless truth. Now let me be clear that I do not support the death penalty being applied to ‘drug-running’, since it is not in the worst category of crimes and since, as practised in some South-East Asian countries, it treats the destruction of human life as a means to an end, namely deterrence, when it can only ever be taken in this manner as an end in itself, i.e. for justice’s sake.

Now some (many, I suspect) will object that it is not licit to impose the death penalty except when it is impossible for the offender to be prevented from doing more harm. They base this on the relevant section of Evangelium Vitæ. But when one thinks through the situation that His late Holiness John Paul II envisioned, it becomes clear that he made a category mistake. Think about it: we have a criminal who is, purportedly, so psychopathic and violent that it is impossible to restrain him safely, and so he must be executed. So evidence is gathered, the trial is convened, a jury empanelled, witnesses gathered, the jurors have their deliberations and give their verdict, and the judge considers and hands down his sentence. But the criminal was restrained the whole time! All John Paul II was really doing was reiterating the liceity of using lethal force against an unjust aggressor. Capital punishment is not self-defence; it’s a category mistake. The death penalty is to be applied whenever no other combination of imprisonment, corporal punishment and financial penalty can balance the scales of justices. At the very least, then, murderers must receive the death penalty. To deprive a man of his liberty for life (life imprisonment) is an inadequate substitute for depriving him of life itself. To which one might object: that’s an eye for an eye! We’re more civilized than that! But ‘an eye for an eye and a tooth for a tooth’ is true in principle, it’s just that if one, say, puts someone else’s eye out intentionally, justice can be satisfied through some combination of imprisonment, corporal punishment and financial penalty; it is not necessary literally to put the offender’s eye out in order to satisfy justice. But no such combination of other non-lethal punishments can ever compensate for the injustice of murder.

One might raise an even more fundamental objection, though: the very conception of justice involved. Many in the legal fraternity will argue that we have ‘outgrown’ retributive justice in favour of the presently-fashionable ‘restorative justice’, in which punishment is only ever a means (and one of a range of means) to one or another of a range of ends (rehabilitation for offenders, closure for victims, deterrence for potential offenders). But the essence of justice is giving to someone what he is owed. If the situation of the ‘scales of justice’ being balanced means a situation where good deeds are properly rewarded and bad deeds are properly punished, then as far as the ‘bad deeds’ side of the ledger is concerned, justice is retribution. Rehabilitation for offenders, closure for victims, deterrence for potential offenders, among others, are all worthy ends, but they are subordinate to justice.

Reginaldvs Cantvar