An important yet often neglected aspect of our criminal justice system is the effectiveness of our punishment system. Any punishment meted out by our legal system must contain three elements: it must appropriately punish the convicted person, it must act as a deterrent to others, and it must protect society from repeated criminal acts. Without these elements present, we end up with a system that arrests, convicts, then locks up and ignores for a period of time, then releases back to the population a person with no significant change in behavior or prospects for reform. This revolving door system enforces the idea that punishment for a crime is not serious enough to avoid committing the crime, especially if the pay off for the crime is lucrative enough for the criminal.

Human nature being what it is, it is inevitable that some people will engage in criminal acts. The reasons that drive an individual to crime are many and varied, and I won’t pretend that all circumstances are the same for all criminal offenders. That said, I am prepared to make a sweeping generalization in an effort to categorize criminal behavior in order to better explain how we can more effectively use our criminal punishment system to help deter would-be criminals and to help protect the needs of society.

In the simplest terms, criminal behavior can be partitioned in this way: petty crimes that create a public nuisance that do not directly harm other individuals, but have the potential to harm others or the shared elements of society, and are committed thoughtlessly but not maliciously; serious crimes that are intended to or do cause harm to another person, their property, or the property of society committed out of personal vengeance or for financial gain, whether premeditated or not; and depraved acts against society that cause irreparable personal injury or death, harm the structure and safety of society on a local or national level, or that erode the basic principles of democracy and freedom for personal power and gain, whether premeditated or not. Using these definitions, it becomes easier to establish appropriate punishments for criminal behavior.

The Constitution recognizes two basic forms of punishment in Article VIII of the Bill of Rights, but does so in a way as to restrain society from over-punishing convicted individuals.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

This short sentence has be redefined many times over the years as society’s ideals have shifted and as the legal code has become more complex, and I think that the authors of that document meant to leave this area open to some interpretation by future generations. They seemed to recognize the fact that what may be considered excessive or cruel in their day might not be applicable to future citizens. In the mid and late 1700’s, it was not unheard of for convicted prisoners to be impoverished, drawn and quartered, burned to death, or other such punishment in accord for their crimes. They realized that these types of punishments, when meted out by society, were not so much a deterrent to crime, but rather a reflection of the crimes back onto society. That sentence tried to establish the concept that effective punishment was one that was commensurate to the crime and that anything that moved beyond that threshold would be unbecoming of a society that established itself on the doctrines of life, liberty, and the pursuit of happiness.

But I further believe that the Founding Fathers did not include this Article in the Bill of Rights in an effort to over-protect those people who do commit criminal acts. Indeed, the individual rights of life, liberty, and the pursuit of happiness are directly affected by the guaranty of society’s right to safety, and those who stray beyond the laws must be held accountable in order that others can pursue their happiness without fear of harm. Common Sense requires nothing less than the administration of effective punishment for criminal offenders that enables the offender to either be rehabilitated and returned to society as a productive, contributing member, or to be removed from society completely so as to never threaten the security and stability of others again or drain the financial resources of public funds.

If you look at our punishment system today, you will notice a high rate of recidivism for criminal acts coupled with a low rate of rehabilitation and an even lower rate of societal protection. You will notice large disparities in the application of punishments that dilute the desired effects of keeping the worst criminals out of society while reforming those who can be redirected back into the mainstream. And you will see a system that is expensively wasteful, unmindful of rehabilitation, skewed in favor of the convicted criminal’s comforts and desires and less concerned about reducing crime. Criminal punishment in our politically correct world today is not so much about protecting society and reducing crime as it is about creating a self-perpetuating money trough and feel good atmosphere among criminals while leaving innocent citizens to fend for themselves.

One of the most basic needs of human beings is the need to be accepted by others, so surely the lack of acceptance brings about some kind of negative feeling. Conversely, the conveyance of acceptance allows the receiver to bask in the approval of his peers and promotes similar behavior that allowed for such praise to be given. If this is true, then one of the most valuable tools in preventing recurring criminal behavior is easily, and inexpensively, available to society. Plainly said, it is time to return the concept of public shame to our criminal punishment system. Psychologists will decry this type of punishment at least as cruel, because they are enamored in their beliefs that individual psyche’s are more frail that even the thinnest crystal glass. On the contrary, if properly applied, bestowing shame on individuals for petty level crimes could have a great impact on the incidence of occurrence.

Currently, punishments for petty level crimes often take the form of monetary fines, community service and/or some kind of “counseling.” These punishments have not proven to be very effective in reducing these kinds of crimes simply because there is no longer any sort of negative stigma associated with committing these petty level acts. Paying a fine doesn’t mean much to people who can afford a few hundred dollars whenever they choose to behave poorly. Community service can be too easily turned into something that the offender would normally be doing in the course of their daily life, and counseling is usually just another way for the court system to levy fines without assuring that behavior has been effectively changed. Past societies understood the need to infuse elements of public scorn into their punishments as a way to affect an individuals desire not to repeat that action. These punishments could be limited in scope and combined with elements of monetary fines and verifiable, but free, courses aimed at identifying the offending behavior and learning how to reduce it. At the conclusion, the offender would be received back into the good graces of the community without prejudice and the incident forgotten.

Serious crimes require more serious punishments including a period of probation, incarceration, and restitution to their victims. While in prison, convicts should be required to work at an occupation, so that they have a skill when they return to society. Convicts should be required to take courses on societal expectations and behavior modification. They should be required to give public addresses regarding their crimes, and upon their release should experience a similar shunning procedure by their community. Upon completion of their sentence, they too should be publicly welcomed back into the community or established into another. Because these crimes are more serious in nature than petty crimes, a convicted individual who recommits should have their sentences increased proportionally, including, eventually, their permanent removal from society.

The worst of the criminal offenders are those who cause irreparable personal injury or death, harm the structure and safety of society on a local or national level, or erode the basic principles of democracy and freedom for personal power and gain. Not all of these acts are of a physically violent nature, but still demonstrate a lack of societal involvement to the point of indifference, enabling the offender to feel no remorse and thus be likely to commit similar acts in the future. For these individuals, a lengthy incarceration is probably the most non-cruel method of punishment. The seriousness of their crimes should guarantee that they be removed from the public for some time. Along with many of the techniques described above, upon their potential release, these offenders should be required to register their crimes with a national registry that could track their locations and occupations throughout the country.

For some criminals though, lengthy prison sentences often enable convicted individuals to continue to inflict misery on society. These people commit the worst crimes of humanity and once committed, cannot be made up for. Why then should we as a society, as taxpayers, continue efforts to house and feed and educate these monsters among us? A more effective punishment for these criminals, and a more palatable one for society, would be banishment. Better than the death penalty for it doesn’t kill in the name of justice. Better than life in prison because it doesn’t drain the tax coffers. Better for society in that we know the criminal is out of our midst forever. Our national justice system could establish a penal colony of sorts on one of our many bombed out Pacific Atolls. Construct simple shelters, provide a few transports a year of basic supplies, and then forget about them. This final and total act of non-acceptance might be enough to make a few individuals think twice before plunging off the deep end.

The effects of adapting some of these changes into the punishment could result in the reduction of criminal behavior both through stronger social deterrents and more standard, equally applied punishments. The cost savings could be substantial through the decreased need for short term and permanent incarceration and their associated expenses. The increased safety to society procured through the permanent removal of the most villainous of criminals is nothing less than society deserves. And they reflect society’s desire not to inflict excessive, cruel, or unusual punishments on offenders or itself.

The last step in reforming the criminal justice system involves the revision of the legal code itself. Those thoughts in my next essay.