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Justice and Mercy - Ed's journal
sobrique
sobrique
Justice and Mercy
Today's 'Thought for the Day' on Radio 4 was about the conflicting needs of justice and mercy. How - for example - the woman who murdered her brain damaged son with an overdose of heroin - might be a case for ... well, a bit of both really. On one hand, there is taking a life unlawfully, and on the other - there's situations where killing someone who wants to do it themselves but can't is a kindness.

http://www.guardian.co.uk/uk/2010/jan/20/frances-inglis-tom-heroin-murder

I'm not going to pick up on this case, as I'm not familiar enough with it, but to my mind there really is a qualitive difference between the mother who does that as a kindness, and the terrorist who does it for the sake of politics.

So how do you balance the two? How do you get both justice and mercy?
To my mind, the problem is that the judicial system tries to do several things at once - there's the offender and victim to consider, and there's society as a whole. The offender does and should have an opportunity to put right, and rehabilitate. The victim deserves to see some justice served. And society ... well, need to not have indefinite prison sentences unless they're needed, and has more value having a productive member of a society than a recurring criminal.

I'd like to see every sentence in a court of law form three parts:
Restitutive - which deals with the need to 'restore' - a sentence that leaves aside motives _entirely_ and just deals with the facts as they are - if you take a life, there is a price to be paid. If you damage something or someone - physically or mentally - then they are owed a 'debt' that the onus is upon you to put right. It'll not always be possible - you can't 'undo' some forms of harm, such as murder, but you can have a basic sentence 'because you harmed someone'.

Punitive - a second part of the sentence that deals purely with the need to punish you for the crime you committed. That's all about reinforcing consequences for actions, and is strongly linked to motivation - kill a person for the sake of terrorism should incur a stronger punishment than killing a person because they're suffering a terminal illness and it will put them out of their misery.

Rehabilitive - and the third part, is ensuring you're 'safe' to re-enter society. Some people never will be, and some were from the moment they committed the crime. Some need a bit of help along the way to reinforce why e.g. vandalism is a criminal offense.

Now to my mind, you've got a range of things there - restitutive should be pretty consistent - if someone dies as a direct result of your actions, you get a very similar restitutive sentence.
Punitive is variable, since punishment is ... well, very much a question of why you did what you did - sometimes it's a genuine accident that leads to a death.
And Rehabilitive is ... potentially very open ended. Some people are 'rehabilitated' already, because they realise the consequences of their actions, and never intended the harm done. Others... well, others might just be dangerously insane, and thus the only real option is to remove them from society indefinitely. Most will lie somewhere in between.

But I figure that's a fairly good way of establishing the balance of the conflicting needs of the justice system.
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