A system of justice does not need to pursue retribution. If the purpose of drug sentencing is to prevent harm, all we need to do is decide what to do with people who pose a genuine risk to society or cause tangible harm. There are perfectly rational ways of doing this; in fact, most societies already pursue such policies with respect to alcohol: we leave people free to drink and get inebriated, but set limits on where and when. In general, we prosecute drunk drivers, not inebriated pedestrians.In this sense, the justice system is in many respects a battleground between moral ideas and evidence concerning how to most effectively promote both individual and societal interests, liberty, health, happiness and wellbeing. Severely compromising this system, insofar as it serves to further these ideals, is our vacillation or obsession with moral responsibility, which is, in the broadest sense, an attempt to isolate the subjective element of human choice, an exercise that all too readily deteriorates into blaming and scapegoating without providing effective solutions to the actual problem. The problem with the question of moral responsibility is that it is inherently subjective and involves conjecture about an individuals’ state of mind, awareness and ability to act that can rarely if ever be proved. Thus it involves precisely the same type of conjecture that characterizes superstitious notions of possession and the influence of the devil and provides no effective means of managing conduct: the individual convicted for an offence or crime considered morally wrong is convicted based on a series of hypotheses and probabilities and not necessarily because he or she is actually morally wrong. The fairness and effectiveness of a system of justice based on such hypotheses is highly questionable particularly as a basis for preventing or reducing drug use related harm. For example, with respect to drugs, the system quite obviously fails as a deterrent and the system is not organised to ‘reform’ the offender much less to ensure that he or she has ‘learned a lesson’; moreover, the offender does not get an opportunity to make amends or even have a conversation with the alleged victim. In the case of retributive justice, the justice system is effectively mopping up after the fact. In other words, as far as deterrence is concerned, the entire exercise of justice becomes an exercise based on faith, rather than one based on evidence.
During voir dire, the interviews for jury selection, each person is asked under oath about their experience with the criminal justice system, as defendant or victim, but usually not even the most elementary effort is made to corroborate those claims. One ADA [Associate District Attorney] told me about inheriting a murder case, after the first jury deadlocked. He checked the raps for the jurors and found that four had criminal records. None of those jurors were prosecuted. Nor was it policy to prosecute defense witnesses who were demonstrably lying--by providing false alibis, for example--because, as another ADA told me, if they win the case, they don't bother, and if they lose, "it looks like sour grapes." A cop told me about a brawl at court one day, when he saw court officers tackle a man who tried to escape from the Grand Jury. An undercover was testifying about a buy when the juror recognized him as someone he had sold to. Another cop told me about locking up a woman for buying crack, who begged for a Desk Appearance Ticket, because she had to get back to court, for jury duty--she was the forewoman on a Narcotics case, of course. The worst part about these stories is that when I told them to various ADAs, none were at all surprised; most of those I'd worked with I respected, but the institutionalized expectations were abysmal. They were too used to losing and it showed in how they played the game.
Justice requires not only the ceasing and desisting of injustice but also requires either punishment or reparation for injuries and damages inflicted for prior wrongdoing. The essence of justice is the redistribution of gains earned through the perpetration of injustice. If restitution is not made and reparations not instituted to compensate for prior injustices, those injustices are in effect rewarded. And the benefits such rewards conferred on the perpetrators of injustice will continue to "draw interest," to be reinvested, and to be passed on to their children, who will use their inherited advantages to continue to exploit the children of the victims of the injustices of their ancestors. Consequently, injustice and inequality will be maintained across the generations as will their deleterious social, economic, and political outcomes.
..I began speaking.. First, I took issue with the media's characterization of the post-Katrina New Orleans as resembling the third world as its poor citizens clamored for a way out. I suggested that my experience in New Orleans working with the city's poorest people in the years before the storm had reflected the reality of third-world conditions in New Orleans, and that Katrina had not turned New Orleans into a third-world city but had only revealed it to the world as such. I explained that my work, running Reprieve, a charity that brought lawyers and volunteers to the Deep South from abroad to work on death penalty issues, had made it clear to me that much of the world had perceived this third-world reality, even if it was unnoticed by our own citizens. To try answer Ryan's question, I attempted to use my own experience to explain that for many people in New Orleans, and in poor communities across the country, the government was merely an antagonist, a terrible landlord, a jailer, and a prosecutor. As a lawyer assigned to indigent people under sentence of death and paid with tax dollars, I explained the difficulty of working with clients who stand to be executed and who are provided my services by the state, not because they deserve them, but because the Constitution requires that certain appeals to be filed before these people can be killed. The state is providing my clients with my assistance, maybe the first real assistance they have ever received from the state, so that the state can kill them. I explained my view that the country had grown complacent before Hurricane Katrina, believing that the civil rights struggle had been fought and won, as though having a national holiday for Martin Luther King, or an annual march by politicians over the bridge in Selma, Alabama, or a prosecution - forty years too late - of Edgar Ray Killen for the murder of civil rights workers in Philadelphia, Mississippi, were any more than gestures. Even though President Bush celebrates his birthday, wouldn't Dr. King cry if he could see how little things have changed since his death? If politicians or journalists went to Selma any other day of the year, they would see that it is a crumbling city suffering from all of the woes of the era before civil rights were won as well as new woes that have come about since. And does anyone really think that the Mississippi criminal justice system could possibly be a vessel of social change when it incarcerates a greater percentage of its population than almost any place in the world, other than Louisiana and Texas, and then compels these prisoners, most of whom are black, to work prison farms that their ancestors worked as chattel of other men? ...I hoped, out loud, that the post-Katrina experience could be a similar moment [to the Triangle Shirtwaist factory fiasco], in which the American people could act like the children in the story and declare that the emperor has no clothes, and hasn't for a long time. That, in light of Katrina, we could be visionary and bold about what people deserve. We could say straight out that there are people in this country who are racist, that minorities are still not getting a fair shake, and that Republican policies heartlessly disregard the needs of individual citizens and betray the common good. As I stood there, exhausted, in front of the thinning audience of New Yorkers, it seemed possible that New Orleans's destruction and the suffering of its citizens hadn't been in vain.