I worry about our justice system. I worry that if we scrapped it and started from scratch that we would create anything as wise. I wonder how it was developed to begin with.
My worries may be unfounded. They are derived from the treatment of justice in the media, news, entertainment and social, rather than how it is actually performed in the courts or perceived in the public sphere.
I wanted to write of three aspects of the system and the pressures I perceive against them.
The Canadian Charter of Rights and Freedoms lists two rights that apply. The right to life, liberty and security of person and not to be deprived thereof. And the right to be presumed innocent until presumed innocent until proven guilty according to law. The first drives out the second.
It is an amazing idea that seems so contrary to human nature. To say that we’d prefer to have a guilty person go free than to falsely sanction an innocent one is astounding. We learn this at an early age, but I’m not sure how much it is internalized.
I often see the opposite. As soon as there is the appearance of evidence there is a presumption of guilt. Even in the complete absence of evidence the most likely or the most hated person is at least highly suspect. It seems natural to presume guilt until innocence is proven, but instead we do the opposite.
Isn’t that cool? So cool.
So we look at the first legal right again. We have the cops to protect our rights to life, liberty and the safety of our person. And we have the courts to protect our right not be be deprived thereof. Separate groups with different purposes in order to ensure both halves of the right are given due. I’ve heard it said that we seem to put the cops on trial instead of the accused. Well cool. They really are. Their job was first to protect public safety by getting the alleged offender off the street. Then the court presumes innocence and it must be proven that the cops made the right call.
It is pretty harsh. After all the cops are going to be right most of the time. They aren’t put there pulling random people off the street for crimes. They are highly trained and operating for the benefit of all but the criminal. But we second guess them in a court of law.
I’m repeating myself, but that is an amazing wonder. You can’t help but respect the police more. But we presume innocence.
But it is under attack by media. The news sides with the victim and uses the word alleged as if it were a curse. Entertainment, especially police procedurals, show justice impeded by the courts instead of enforced by them. And social media makes no effort to conceal bias at all in the name of compassion for the victims.
The courts are an island of presumed innocence is a sea of presumed guilt.
This is what makes me concerned. Under that assault does the common person start to see justice among the mob rather than with the court? How do we install the wonder I feel when looking at the system?
Look at the plight of the poor defence attorney. Assumed to be a scumbag protecting the guilty. In police shows the cops assume you are guilty when you ask for a lawyer. In the courts the judge upholds the law, the jury determines the result, the prosecutor presents the case, but the protection of the presumption of innocence rests with the defence attorney.
Cool. And tv aside, I’m asking for a lawyer as soon as I think I need one. Especially if I’m innocent.
Jeepers. This is going long. Let’s hope the next sections are shorter.
Thou shall not kill
We don’t beat criminals either. The Bible had an eye for and eye. The Hammurabi Code called death for death and to strike of the hand that assaulted. (They did have presumption of innocence though. Right. Cool!)
This is a pretty recent development. We imprison, we fine, we force restitution, we call for community service. But even the guilty retain their rights to life and the security of person.
No one gets stoned. To one is buried and left to be eaten by ants.
It calls to question what the point of the justice system is. My opinion is that for most criminal acts you can’t balance the scales. If you stolen from the goods can be returned, but your sense of security can’t. What can be taken from the guilty that is equivalent to that? And the more egregious the crime the more that is true. In the case of murder is your absence from family and community equivalent to the absence of the criminal from theirs? How many will mourn you compared to how many will mourn them? If you were a doctor can we establish a cost for the lives you could have saved. If a mother for the children you could have born?
Section 718 of the Canadian Criminal Code lists the purposes of a sentence. It doesn’t list balancing the scales. If that isn’t the purpose of justice than it is easier to see why killing an offender isn’t a sanction we impose.
I think this is hard. Hard for society and especially hard for victims. I think there is an expectation that justice means achieving a balance. Certainly the common image of blind justice implies that. But if that is unachievable outside of civil cases; unachievable in criminal cases then what is justice?
And media supports that feeling. Especially movies. When someone has been really bad they aren’t handed over to the courts. They receive punishment immediately and viciously. Because a court case doesn’t show the balance an audience desires. The purpose of a movie is to entertain. To satisfy the mob. Not to show justice. But it tells us that is exactly what it is showing.
We need to constantly be reminded that what justice is isn’t feeling. It is right and law and the protection and maintenance thereof. The result is something that might not feel as we expect. It certainly shouldn’t entertain.
Justice isn’t murder. No matter the provocation.
Murder is the worst crime
Ok – high treason is listed as equivalent. Murder carries a maximum sentence of life imprisonment with potential for parole after 25 years.
Other crimes are less. We don’t consider them as bad as murder. Kicking a dog is not murder. Scamming an old lady of her life savings is not murder. Even rape, even torture isn’t murder. While these are reprehensible acts and some are heinous crimes we consider them as less than murder.
So they get a lesser sentence. Somewhere is the scale of life to a conditional discharge.
But in all cases I’ve heard it said that such offenders should be killed. And when someone is released on time served when found guilty it offends our sense of justice. The notion that lesser crimes should receive lesser sanctions is obvious and logical, but it is certainly not emotional.
Furthermore intent matters in sentencing. Accidents are considered lesser offences than premeditation. A crime committed because of hate is an aggravating condition. One committed due to stupidity is not.
It seems that as a result whenever we hear of sentences they seem too short to be just. How do we align what seems logical on paper with what we feel when it is applied?
We do not. We go back to basics. We look at protecting our basic rights and freedoms and apply reason. We avoid what we feel. It is hard, but that is justice.
In so many ways our justice system seems at odds with our gut reactions. Presumption of innocence, lack of corporeal punishment removes balance, and sentence restrictions see too lenient.
And media reinforces our gut. It says that justice is injustice.
We have a system that is based on reason. It is based on what we consider our fundamental rights. And when applied it differs from our gut.
I said it before. That is wondrous and amazing. How did we ever overrule our gut to get here?
And my point? Maybe we should marvel at what we have instead of just attacking its faults and perceived faults all the time. Often those perceived faults are actually it’s strengths. Justice isn’t the mob. It isn’t decided by media. It is done in our courts. It is constrained by reason not emotion.