Having thus compared state and non-state dispute resolution systems with respect to civil justice, let’s now turn to criminal justice. Here we immediately encounter two basic differences between state and non-state systems. First, state criminal justice is concerned with punishing crimes against the state’s laws. The purpose of state-administered punishment is to foster obedience to the state’s laws and to maintain peace within the state. A prison sentence imposed upon the criminal by the state doesn’t, and isn’t intended to, compensate the victim for his injuries. Second, as a result, state civil justice and criminal justice are separate systems, whereas those systems are not distinct in non-state societies, which are generally concerned with compensating individuals or groups for injuries—regardless of whether the injury would in a state society be considered a crime, a tort, or a breach of contract.
Just as is true of a state civil case, a state criminal case proceeds in two stages. In the first stage the court assesses whether the accused criminal is or is not guilty of one or more of the charges. That sounds black and white and seems to call for a yes-or-no answer. In practice, the decision is not so absolute, because there can be alternative charges differing in severity: a killer may be judged guilty of premeditated murder, killing of a police officer in the course of duty, killing in the course of an attempted kidnapping, killing as a spontaneous act of passion, killing in the sincere but unreasonable belief that the victim was threatening imminent and grave bodily injury, or killing as an act of temporary insanity or under conditions of diminished responsibility—with differing punishments according to the charge. In reality, many criminal cases are settled by plea-bargaining before coming to trial. But, if the case does come to trial, the charge still requires a verdict of guilty or not guilty: Ellie Nesler was found guilty of killing Daniel Driver, even though her motive of avenging the abuse of her son won her the sympathy of much of the public. In contrast, in non-state societies an injury inflicted is routinely viewed as something gray: yes, I did kill him but—I was justified, because he practiced sorcery on my child, or his cross-cousin killed my paternal uncle, or his pig damaged my garden and he refused to pay for the damages, so I owe his relatives no compensation or else lower compensation. (But similar mitigating circumstances do play a wide role at the sentencing stage of a Western criminal trial.)
If the accused is found guilty of a crime, the state then proceeds to the second stage of imposing a punishment, such as a prison sentence. The punishment’s aims include serving three purposes, on which the relative emphasis differs between different national systems of justice: deterrence, retribution, and rehabilitation. These three purposes differ from the main purpose of non-state dispute resolution, namely, to compensate the victim. Even if Daniel Driver had been sentenced to prison, that wouldn’t have compensated Ellie Nesler and her son for the trauma of the son’s sexual abuse.
One major purpose of punishment for crimes is deterrence: to deter other citizens from breaking the state’s laws, and thereby creating new victims. The wishes of the current victim and her relatives, or of the criminal and his relatives, are largely irrelevant: the punishment aims instead to serve that purpose of the state, as representative of the state’s other citizens. At most, the victim, the criminal, and their relatives and friends may be permitted to address the judge at the time of sentencing, and to express their own desires about sentencing, but the judge is free to ignore those desires.
These separate interests of the state and of the victim are illustrated by a widely publicized criminal case brought by the state of California. The film director Roman Polanski was accused of drugging, raping, and sodomizing a 13-year-old girl (Samantha Geimer) in 1977, pleaded guilty in 1978 to the felony of having sex with a minor, but then fled to Europe before he could be sentenced. Polanski’s victim, now a woman in her 40s, has said that she has forgiven him and doesn’t want him prosecuted or imprisoned. She has filed a statement in court asking for dismissal of the case. While it may at first strike us as paradoxical that the state of California should seek to imprison a criminal against the explicit wishes of the crime’s victim, the reasons for nevertheless doing so were stated forcefully in an editorial in the
A second purpose of punishment, besides deterrence, is retribution: to enable the state to proclaim, “We, the state, are punishing the criminal, so you the victim have no excuse for trying to inflict punishment yourself.” For reasons that are much debated, imprisonment rates are higher, and punishments more severe, in the U.S. than in other Western countries. The U.S. is the only Western country still applying the death penalty. My country often imposes long-term imprisonment or even life imprisonment, which in Germany is reserved for only the most heinous crimes (e.g., postwar Germany’s worst case of serial murder, in which a nurse was convicted of killing 28 patients in a German hospital by injecting them with lethal drug mixtures). While long-term imprisonment in the U.S. has traditionally been reserved for serious crimes, the “three-strikes-and-you’re-out” policy now adopted by my state of California
The remaining purpose behind punishing convicted criminals is to rehabilitate them, so that they can reenter society, resume a normal life, and make an economic contribution to society instead of imposing a heavy economic cost on society as prisoners of our costly prison system. Rehabilitation rather than retribution is the focus of European approaches to criminal punishment. For instance, a German court case forbade the showing of a documentary film accurately depicting a criminal’s role in a notorious crime—because the criminal’s right to demonstrate his rehabilitation, and to have a fair chance of making a healthy return to society after serving his prison term, was considered even more sacred than freedom of the press or the public’s right to know. Does this outlook reflect greater European concern with human dignity, nurturing, and mercy, and lower European concern with Old Testament retribution and with free speech, compared to the U.S.? And how effective, really, is rehabilitation? For instance, its effectiveness seems limited in cases of pedophiles.
Restorative justice
Missing so far from our discussion of purposes of state criminal punishment has been mention of the main purposes of state civil justice (to make the injured party whole) and of non-state dispute resolution (to restore relationships and achieve emotional closure). Both of those purposes, which address needs of a crime’s victim, are not the major goals of our criminal justice system, although there is some provision for them. In addition to furnishing testimony helpful in convicting an accused criminal, the victim or the victim’s relatives may at the time of sentencing be permitted to address the court in the criminal’s presence, and to describe the crime’s emotional impact. As for making the victim whole, some state compensation funds for victims exist, but they are generally small.
For example, the most publicized criminal case in recent American history was the trial of ex–football star O. J. Simpson for the murder of his wife Nicole and her friend Ron Goldman. After a criminal trial lasting eight months, Simpson was found not guilty. But the families of Nicole and Ron then prevailed in a civil suit against Simpson on behalf of Simpson’s and Nicole’s children and of the families, and won (but had little success in collecting) a verdict totaling about $43,000,000. Unfortunately, cases of compensation being obtainable from a civil suit are exceptional, because most criminals are not wealthy and do not have significant assets that could be attached. In traditional societies the victim’s chances of obtaining compensation are increased by the traditional philosophy of collective responsibility: as in Malo’s case, not only the perpetrator but also the perpetrator’s relatives, fellow clansmen, and associates are obliged to pay compensation. American society instead emphasizes
