This is Part 9 of the Conservative Standpoint a serial post by Cole D.
This essay will be an attempt to establish a conservative conception of how and why the state carries out justice, why the exercise of justice and the execution of the law is the most important function of the state, and what can be done to enhance both the rehabilitative potential of our institutions whilst also enhancing the public perception.
In order to do this we need an understanding of the application of justice and punishment with a scope that extends beyond simply the preservation of liberty. To establish this foundation by which we can conceive a non-liberal justice a multitude of other basic premises must be asserted. The first among these is that justice is a complex concept and because of the nature of justice, it shall remain unquantified throughout the scope of this piece, justice as Roger Scruton said, is something that we conceive of “at the margin” of human understanding and necessarily one's perception of justice varies from another's just as individuals vary in their interpretation of ethical behavior. Corollary to this is the notion that justice must punish, but punishment, is not necessarily just. What is being asserted in this statement is that we must punish when some commits egregious harm against the social order, and that the punishment inflicted will—wisely be an expression of society’s outrage—however society, being a fickle thing, quickly incensed may in its expression overreact; likewise society, through its autonomous legal institutions, may under punish as happens more and more often.
So why must conservatives appreciate the law? Although it seems axiomatic that a conservative would support the law as an element of the established order and a means to protect the institutions of ordered society, this is not always self-evident, especially in an era of activist supreme courts and sloppy legislation. Conservatives must realize that democracy is necessarily mercenary without the protection of a legal order existing both before democracy and in parallel to it. It was Thomas Paine, who famously said, “law is king.” Pain was correct, this principle has long become foundational beyond America and serves as the body which gives the democratic state both structure and immunity against itself, that is why the conservative must care.
From this care for legal matters, the conservative will concern himself now with one of the key debates of our age, by what means should we punish the wrongdoers in our society, and by what means can we socialize them for reintegration. Finally, are our prisons doing a good job of fulfilling the needs of criminal justice? I am no legal scholar, and hence the vagaries put forth, but no. I cannot comfortably state that prisons provide an effective, consistent and humane means by which enforce society's judgment.
So how should the conservative see the exercise of the law and is place in civil society?
Niccolo Machiavelli famously said: “The Prince must use first law, which is natural to man, but must be prepared to use violence, which is bestial, in order that the rule of law be maintained.” This statement is significant because it touches on a deep discomfort; we have a growing fear of the exercise of violence in our law making and our enforcement. There is no such thing as pretty law enforcement. Instead, violence is done swiftly in the sovereign's name on behalf of the great body of people with the intent that outrage is expressed and safety be ensured. Contrary to popular perception this swift and brutal exercise of authority, like the exercise of force on the street by officers of the law, will actually serve to limit the amount of force employed. Broadly speaking, we know that the officer that fails to act with force early and powerfully in a confrontation sets himself up for a loss of control and greater violence as the interaction continues. The same may be asserted on behalf of the state, do swift and effective violence now, and save disorder in the future.
This assertion however will remain disagreeable to the liberal however, because it provides no definition of what constitutes harm. Nor does it limit force strictly to its absolute minimum required in protection of the individual, their property, and their rights. In the face of this counter argument the conservative would offer firstly that the liberal notion of rights (necessarily abstract to be all encompassing) such as the Declaration of the Rights of Man and the U.N Universal Declaration of Human Rights are by no means mutable enough to serve as the foundation of legal order, nor are they applicable to all places and people, firstly because they provide those who harm the society in the most terrible and repulsive ways entitlement to the same privileges and protections of the citizenry and secondly because they are predicated on an established order that may enforce such rights, regardless of the public perception of the necessitation of all the clauses embodied in such a charters. To summarize, the notion of universal rights becomes problematic both because of its difficult application and because it does not embody the sentiment of the people instead being imposed disagreeably from the top down.
By understanding that harm is complex and based on a local understanding of the community's needs leads, the conservative to the next point about their own theory of justice. That the theory does not just pertain to the protection of the individual, but also the protection of the social order, and that the conservative theory of punishment embodies the expression of civil outrage at harm done to the collective. The conservative disposition on punishment is one of the collective against the interloper a contentious position to advance. Criminal law is predicated on the preservation of the civil order, which in turn preserves the freedom. Therefore in their transgressions the individual however briefly divorces themselves from the civil society and becomes an element beyond the borders of the nation; therefore the individual once convicted wanders beyond the state and beyond the rights applicable within it. This does not mean that the prerogative becomes of one abuse and cruelty, but instead it serves as recognition that the individual has divorced themselves from the community voluntarily. This does not mean that the decaying, atomized, weak, indulgent, and apathetic society is not in any way accountable for the mistakes of its citizens; it simply means that rehabilitation and integration becomes as imperative as punishment if the conservative is to consistently recognize that not only does man err continuously, but also that human society in the last hundred years has established a set of conditions by which such failures become even more likely, and these failures though the burden of the individual cannot be possessed by them alone.
Rehabilitation then becomes the means by which society says that we shall act in good faith to hold up our end of the bargain. Society shall do its best to address the absence of the civilizing influence it failed to instill initially and it in doing so it has done its honest part in securing the individual against future wrongs. This does not mean our current rehabilitation regimes are adequate—they are not. It simply means that the effort to reconstruct the civil in the individual is on the theoretical basis the necessary effort.
So then, why is it that we punish? And why must this punishment by its nature be set apart from efforts to rehabilitate? Firstly because as Roger Scruton notes in The Meaning of Conservatism, if we are to eliminate the human culpability we are in turn required to do away with all praise and recognition of achievement. If we accept the premise that human behavior is predicated exclusively by social factors, as many progressives and leftist determinists would have us believe, then these positive actions are not the produce of individual autonomy but rather social conditions. Nevertheless, I disagree with Scruton’s assertion, in this instance, that all criminal behavior is reducible to individual expression. However, we know in a tacit level that the social determinists would never let achievement originate within the confines of the social unit alone, that is simply too depressing a conclusion to reach even for those who see autonomy as an illusion. Therefore, the conservative recognizes that anyone who strays from the social order is to some extent acting on a volitional basis and from this voluntary action harm ensures and consequences are required. However, this is where conservative conception and its alternatives differ. While, those who do not believe in the conservative philosophy see the punishment as a means of correction and a way by which we may redirect the individual to positive behaviors. The conservative holds punishment as its own end. We punish because someone will; the state if it wishes to maintain authority and legitimacy must take up the mantle of the individuals within it and arbitrate on their behalf. In doing so the state must punish expressing the hostility of the population, and preventing vigilantism from growing in a society. The state in its duty to punish is acting in its own interest as an autonomous organ, which by default benefits its subjects through stability.
Here I agree with Scruton again as he regards the transformation of punishment from a means (to express outrage and prevent vigilante behavior) to an end (often reform of the individual) as a negative development, which disconnects the punishment from the crime and makes it ambiguous to the public. Scruton maintains as do I. “For ordinary people punishment is simply a moral necessity, which has nothing to do with any humanitarian aim. . . . To replace punishment by ‘reform’ is to separate the law from its moral foundation; it is also to assume a right of forgiveness which lies with the victim of the crime alone.”
This brings about the topic of why and how we exercise the state's duty to punish, in this case one institution stands out as the universal norm for punishment in the modern era: the prison. The prison, seems an adequate solution, it sequesters those who have done harm to society, and provides a means by which the state can theoretically inculcate them with the values of society. Likewise, the ignorant see the institution of the prison as an effective alternative to the bygone corporal and capital punishment. This is specious. Prisons divorce the punishment from the crime. Instead of reflecting the wrong done to society punishment simply becomes a game of numbers. Meanwhile, prison fails to rehabilitate, and above all else imposes immense externalities on society and the individual convict.
Prison, is an institution with dubious efficacy, and we know this because even the Canadian Government’s reports, despite the protestations of the governing party have found numerous correlations between recidivism and incarceration. The crime college theory is one of merit. It tells us that instead of learning to be model citizens during their internment prisons instead associate with criminals from a variety of backgrounds with numerous different convictions and in turn diversify both their understanding of criminal acts and increase their criminal contacts on the outside; not only do prisoners associate with those who have done wrong on a mass scale, but they find themselves placed in an environment where any reform is difficult. Immersed in the criminal element the convicts are associating with people just as troubled as themselves, not the positive influences necessary to build a successful future. What does this tell us, but the fact that the system of corrections that currently makes up the status quo is inadequate. Still, this is just the first of many externalities imposed on society by the system of imprisonment.
Another major externality comes with the exorbitant costs associated with the operation of the prison and the maintenance of those who have to reside inside. The Edmonton Sun reports that on average it costs approximately 117,000 dollars to house an inmate per year. A cost completely borne by the taxpayer; worse, however, is that the convicts themselves cannot work in a meaningful sense and contribute to the tax base. Couple this reality with the fact that numerous convicts have families and children on the outside who also likely receive state benefits or find themselves collecting state benefits and you have a terrible cost.
This amputation of the prisoner from the family costs double however—not only do we deprive the children and spouse of their partner— we also remove those we imprison from the most powerful stabilizing institution available to society. These prisoners often themselves products of poor homes and single parent families in turn pass on the same conditions to their children, who, statistics predict will go on to commit crimes on a much larger scale than those children of intact families.
It is not pleasant to admit that we are failing both our convicts and ourselves, but we must. With a little investigation one may find for themselves that prisons are fundamentally a means of restraint designed to keep the dangerous away, they are not a means of punishment and they are not a means of rehab, simply put, they are purgatory for most involved, causing harm to both the community and the convict.
So what becomes the alternative to the prison system? I believe the answers lie in the application of justice and punishment in times past combined with a reformed and healthy rehabilitation system completely independent from our prisons. First, I must declare that these propositions are not satire, but instead I propose that a society we seriously consider the alternative justice model I am proposing. Society will only be satiated with an outward expression of punishment; therefore I suggest public executions and lashings for the most egregious crimes. These public executions should occur as quickly as is feasible and to maintain economy be carried out by method of firing squad. Meanwhile, those who receive corporal punishment may immediately re-insert into society to where there is no harm done to the family life of the individual and after convalescence they are free to return to work.
Prison communities can serve to restrain the most depraved and hopeless of criminals. Criminals whose propensity to reoffend is high, but this solution must be limited only to those who constantly re-offend and are a recurring danger. The same applies to the extremely mentally ill, who should be institutionalized in new residencies. Conservatives should seek to expand the mental health infrastructure to serve these individuals so that they do not end up perpetually in a prison.
For the modest offenses and property crime that occurs on a daily basis some form of restorative justice in combination with fines and community service seems more than capable of addressing these offences and keeping those who have done wrong both a part of the community and productive.
The more difficult crimes, sexual crimes and drug offenses I would also offer alternative suggestions. To the former, public corporal punishment is fitting, followed by forced chemical castration, which has been shown, to improve outcomes for sexual offenders immensely. For drug offenders, society will impose all punishments in combination depending on the extent of the crime, but for those addicted to these toxic substances legislation based on the mental health act and allowing for the detainment of individuals and the deliverance to rehab centres is a necessary solution. From there the addicts can be medicated and rehabilitated and the costs would still likely be less than a current prison sentence.
I know such solutions will likely amount to nothing, but perhaps, with the failure of mass imprisonment legislators will begin to look at alternatives. I know that politicians and theorists will be tempted to move toward the most modest punitive measures. However, I also know that the public will not be complacent while criminals receive increasingly lackadaisical penalties. I hope my proposals will serve as means to address the outrage the community feels at the measures taken against the criminal element, these measures in Canada remain incommensurate. I hope my suggestions have potential to enhance the effectiveness of rehabilitation by separating such measures from the punitive apparatus.