Moulton Lava

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Monday, December 05, 2005

Ramsey Clark and Dysfunctional Judicial Processes

"If every form of participation in the judicial process is not protected, the judicial system will fail and be destroyed." —Ramsey Clark, speaking today to the Iraqi tribunal.
Ramsey Clark is the former US Attorney General (under Lyndon Johnson) who has taken up controversial positions in a number of cases where the integrity of the legal process was on the line.

I happen to believe the judicial process is fatally flawed and beyond redemption, Ramsey Clark notwithstanding.

Fundamentally, the judicial process can only render two outcomes: Either the defendant is found guilty of commiting a crime, or not. If the defendant is found guilty, the judicial system is obliged to adminster some prescribed punishment.

Imagine if this method were applied to your automobile. Something goes haywire with your car. You take it to a judge who decides if the car is guilty of violating its performance specifications. If the car is found guilty, some prescribed damage is inflicted upon it.

The absurdity of this practice is manifest. If a machine is broken, we are obliged to diagnose and repair it, or declare it beyond repair. We then downgrade its functionality to something less than a fully functioning transportation vehicle. Perhaps we cannibalize it for parts to repair other ailing vehicles.

The medical/repair model makes sense to me. The judging/punishment model does not.

There is no doubt in my mind that figures like Napoleon, Stalin, Hitler, and Saddam are monsters in the annals of politics and government. And yet there is no shortage of candidates who would jump at the chance to follow in their footsteps.

The question in my mind isn't so much what to do with characters like Saddam, but what to do with a culture that produces so many tyrants. The history of human affairs is the history of tyrants.

And what is a tyrant? Someone who has the power and authority to decree the law.

It's hard to envision a more dysfunctional regulatory structure.

Shall we fix it? Or punish it?


Blogger Porten said...

First, it seems to me that there are current legal theorists who embrace a rehabilitative view of our (American) justice system. Within this structure, objecting to the use of the term ‘judge’ as opposed to ‘diagnose’ becomes semantic; the finder of fact (whether judge or jury) must first determine if the person in question has committed the crime which evidences his broken state as a part of our diagnosis and later treatment.

Our apparently anemic efforts at rehabilitation segue into my next point. Few would dispute that the most ideal solution to the problem of crime is to convert criminals into ‘healthy’ and constructive members of society. Do we fail at this noble goal from lack of trying? The 1980s did see something of a renaissance of rehabilitative theory applied in US prisons. Despite these efforts, rates of recidivism remained steady, causing the theories to fall from favor. Is the problem, then, that criminal behavior is difficult to ‘fix?’ It is certainly difficult to pin down a identifier which predisposes persons to crime (other than a history of criminal behavior), so how do we ‘medicate’ the source of the symptom?

Here, again, it makes sense to point out that the vast majority of those who operate within the judicial process do ascribe to a punitive theory, but one of incapacitation. Those who believe in incapacitation as a viable and just goal of the system must struggle when creating sentences to balance the good of incapacitation with other values in our society, such as our right to second (and third) chances, and our Constitutional edict (a relic from a more punitive time, but an important balancing test nonetheless) that the sentence fit the crime. It is not so much judicial process that is hopelessly broken, but its skewed application in a society that creates criminals.

7:28 PM  
Blogger Moulton said...

I think we fail at rehabilitation for the same reason we fail at primary education. We either don't understand very well how learning works, or we fail to develop educational practices consistent with our nominal understanding of the way people learn.

It appears that almost any habitual practice is difficult to change, without regard to whether the practice in question is viewed as socially desirable or not.

Clearly a criminal justice system that cultivates the accelerated development rotten apples is not a desirable system. In medicine, such a treatment would be called iatrogenic — meaning that it exacerbates the disease that it proposes to cure.

But there is huge chasm between noticing that the attempted cure is causing the disease to spread and changing the practice to reverse that cancerous trend.

There is a joke that the greatest single cause of death is birth.

Similarly, the greatest single cause of crime is the astonishing number of obscure laws that label so many technically defined behaviors as 'criminal'. There hardly remains a living soul more than a few minutes old who hasn't violated at least one of them.

The entire system of law itself is grounded in an erroneous belief regarding the design of functional regulatory structures. This erroneous belief is the central myth of our secular culture, and probably the most corrosive misconception in the annals of human history.

There ought to be a law criminalizing the practice of law on the basis of a patently faulty theory.

The punishment for the practice of law under false pretenses would be lifting the license to practice law and requiring the miscreant to study a more useful practice.

8:06 PM  
Blogger Lewis said...

> It is certainly difficult to pin down a identifier which predisposes persons to crime.

The right wing belief is that the cause of crime is criminals, bad people in need of punishment.

The sociological belief is that the cause of crime is the social,economic and political system and how it is organized.

The right wing belief is a tautology. The sociological belief is a testable observation.

11:59 AM  
Blogger Moulton said...

For the empirical view, see this analysis by Harvard's James Gilligan.

5:38 PM  

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