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Justice Means Punishment

What do people mean when they demand justice for George Floyd?

I shall return in a moment to this question. Let me first sketch my own attitude to his death, which is not very different, I imagine, from that of most people. He was killed by a policeman behaving in a brutal fashion, and it is very difficult to think of extenuating circumstances for that officer’s conduct. Even had George Floyd not been altogether angelic in his own conduct, it is part of a policeman’s duty to deal with awkward customers without killing them in brutal and even sadistic fashion.

Even worse, from the social point of view, was that Officer Derek Chauvin was watched by three of his colleagues who did nothing to intervene. This suggests, at least prima facie, that there is something deeper wrong with the Minneapolis police force than individual rogue behaviour (though it wouldn’t surprise me, either, if it emerged that Derek Chauvin was a bully to his police colleagues as well as to the public, and that they were afraid of him). To establish any such general fault with the Minneapolis police force with reasonable certainty, however, would require a genuinely independent and impartial enquiry, if such an enquiry could now ever be held. In the meantime, Chauvin and the three others ought to be tried according to law.

I can now return to my original question: what do people mean when they demand justice for George Floyd? I think this is easily answered: they mean severe punishment of Chauvin and his accomplices. I surmise that, in their hearts, many would want the death penalty to be applied to him, however much they might want that penalty abolished in all other cases.

I have no quarrel with the idea of severe punishment in a case such as this: I doubt that anyone does. (I assume that there is little or nothing to be said in mitigation for the man accused, though no doubt a clever lawyer will find something to say.) And Mr. Chauvin will be severely punished even if his prison sentence is not a very long one, for I know as a former prison doctor that the lot of an imprisoned policeman, even for a far lesser crime than his, is not a happy one. He will have to be under special protection for the duration of his sentence: prisoners, who may have a poor memory for what they themselves have done, have the memory of elephants for policemen. A momentary lapse in his protection, ever more likely to happen the longer his sentence continues, will be sufficient for him to suffer a vicious attack. So long as he remains in prison, then, he will never know a moment’s peace of mind.

The curious thing, however, is that no one, not even the most ardent of penological liberals, is arguing that Chauvin was the victim of his circumstances (his upbringing in a violent, racist household or society, for instance) and therefore that he was not fully responsible for what he did. Nor is anyone arguing that punishment in his case would not work and that what he needs is some kind of therapy. They do not doubt for an instant that he should be severely punished, probably more severely than he actually will be punished.  

Common criminals, held by penological liberals to be but the victims of their circumstance not deserving of punishment, are reduced to the status of mere mechanisms who register what impinges on them as a barometer registers atmospheric pressure.

In short, even penological liberals believe that there are cases in which wrongdoers should be punished, though in most other circumstances they would deny that punishment is justified either philosophically or by its empirical results.

In other words, they divide the population into two: those who may rightfully be subjected to punishment (a small minority), and those who may not. The latter at most require some kind of therapy to correct their disordered conduct, which arises from unfavourable life-experiences, usually in childhood. Much of their disordered conduct, though, may simply be excused, as it is considered understandable given their circumstances. In the eyes of penological liberals, it is the circumstances that need to change before criminals can be expected to comport themselves decently.

Of course, mitigation and excuse must be part of any system of criminal justice and, particularly in the case of mitigation, it is impossible to draw perfectly clear lines. But the notion of crime should not be mitigated to the point of extinction, so that no one is really responsible for anything except for those, like Derek Chauvin, whom we place in the “punishable class,” those deemed fully responsible for their actions without mitigation.

The implicit division of humanity into the minority such as Derek Chauvin, Harvey Weinstein, and Bernie Madoff who are deemed rightly punishable, and the majority who are not, unintentionally confers on the former a superior status, for only they are held to be fully human, with free will and moral responsibility. Ordinary street robbers or other common criminals, who are held by penological liberals to be but the victims of their circumstance and therefore not deserving of punishment, are reduced to the status of mere mechanisms who register what impinges on them as a barometer registers atmospheric pressure. This is wrong as a matter of fact—street robbers know full well what they are doing—and demeaning. They are given the status that Descartes conferred on animals.                      

Justice must be tempered by mercy, if for no other reason than that what some people deserve is so horrible that we would be brutes ourselves if we inflicted it. It is well to remember also that we are all sinners. But, as the calls for justice for George Floyd (meaning punishment for his killer or killers) demonstrate, it is impossible to expunge from the human mind the idea that punishment, fundamentally, is the correct response to wrongdoing. To excuse some and not others, and to excuse them without strict moral criteria but ex officio, that is to say by membership in a social, racial, or occupational group, is to undermine the only equality that really matters, namely equality under the law.          

Reader Discussion

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on June 15, 2020 at 09:48:23 am

Dalrymple says: "(I)t is impossible to expunge from the human mind the idea that punishment, fundamentally, is the correct response to wrongdoing."
That is not so. The Left and a growing majority of its Democrat Party exponents have, indeed, expunged from their minds the idea of punishment for certain crimes and of a certain class of people with which they either agree or are in sympathy.

For example, it is now routine for Democrat-controlled local law enforcement at university campuses and Trump political rallies to exonerate criminals from responsibility for the crimes of public disorder, assault, intimidation and threat when conservative speakers or Donald Trump are the object of the crimes.

Recently Democrat-controlled law enforcement forces across the nation literally ignored the vast majority of criminals (thousands) and arrested but released without charging a few hundred criminals despite strong evidence of arson, looting, assault, aggravated assault, assault with a deadly weapon, destruction of public and private property, trespass, grand larceny, burglary and conspiracy to commit each of those crimes. This proves that not only is it not "impossible to expunge from the human mind the idea that punishment, fundamentally, is the correct response to wrongdoing" but rather that it is common to "expunge (the notion of punishment) from the human mind" of those who agree or sympathize with the racial or political class or motivations of the criminal or the goal of the crime.

I would cite just a few additional examples of the long history (going back all the way to Jim Crow) of this phenomenon. There were the acquittal verdict in the murder trial of OJ Simpson (a racially-motivated act of jury nullification which was widely applauded in the African American community,) the acquittals by Washington DC juries of every one of the dozens of Antifa members and other persons charged and prosecuted for rioting, assault, destruction of property and arson committed during President Trump's inauguration; numerous acquittals by DC jurors of Democrat politicians prosecuted under federal law (indeed, I would argue that DC's recent history of racial and political jury nullification is why DOJ now fails to prosecute high-level Democrat politicians and federal officials like Lois Lerner of the IRS;) the failure to prosecute (of necessity in DC) Hillary Clinton for numerous violations of the Espionage Act, obstruction of justice and lying to Congress; the failure to prosecute Bill Clinton for any of his numerous sexual assaults, the failure to prosecute FBI Director James Comey for leaking classified information and lying to Congress, and most recently the failure to prosecute (of necessity in DC) Joe Biden for his sexual assault, et cetera, et cetera, et cetera.

This phenomenon is now extended so that we see myriad sanctuary cities where federal criminals are given safe harbor. We see popularly elected prosecutors (as in Philadelphia and San Francisco) who do not prosecute entire classes of crimes and criminals. We see cities and states extending early release to classes of convicted felons, and we see law enforcement in Democrat cities (like Los Angeles, Seattle and Minneapolis) standing down (even kneeling) to politically-favored criminals as politically- favored crimes are committed openly and with impunity.

The history is long of a politically preferred class of crimes and criminals which receive special treatment by "penological liberals" (Democrats) who control law enforcement. This elite class of public officials in Blue States and cities have, indeed, expunged from their minds the notion of punishment for crime except for their political opponents.

Alas, law enforcement and equal justice under the law, like everything else in our society, have now been politicized.

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paladin
on June 16, 2020 at 12:58:46 pm

For that to be the case you would have to assume that the left/liberal/progressives aren't aware of what they do & that their public pronouncements are in accordance with their actual thoughts & aims.

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aelfheld
on June 15, 2020 at 09:56:31 am

Important issue these days. Very complicated things raised here. Just one thing right now:

The respectable author of the post, claims that, I quote:

I assume that there is little or nothing to be said in mitigation for the man accused, though no doubt a clever lawyer will find something to say........

End of quotation:

With all due respect, there is a lot to say (and almost always) and lawyers claim what they claim, not out of nowhere. Those are not synthetic or artificial or cunning fantasies claims. But, real and substantial. Drawn from the law, precedents, ethics etc.... We simply can't understand and exceed the materials, but, it doesn't render it, or, not taken from surreal sphere, or, totally beyond common sense. For example:

His lawyer may claim ( and factually correct it seems) that such horrific practice, as kneeling on the neck of one suspect, is the policy of the police department ( it is alleged, that more than 10 years already). That, that wasn't his own personal initiative or idea. He was only implying it on that given case. Or:

The other officers, were trying to draw his attention. But, he ( Derek) was in charge, replying, that it is all good. Or:

That the victim, had background pathology, causing his death ( seems correct by the way). How could he know it or predict it ? Many persons, while arrested, feel " not really good" . Under huge stress naturally. All sort of symptoms may emerge. But, unless, critical and manifestly so would be the situation, or clear and conclusive knowledge about problematic medical problems ( at the background) the police officer, needs to stick to his job.

All that, may mitigate severity here. This is not so simple as an apple. What we see in that footage, is not at all, the end of it. Far even from the beginning. In courts, things may look really different.

Thanks

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El roam
on June 15, 2020 at 10:04:56 am

Here, link, supporting that claim, that kneeling on the neck of one suspect, was during years, the policy/ practice of the police department, in Minneapolis:

https://www.usatoday.com/story/news/nation/2020/05/29/george-floyd-experts-say-neck-restraint-allowed-minneapolis-can-kill/5274334002/

I shall leave later, more .....

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El roam
on June 18, 2020 at 00:42:20 am

I'm not someone who enjoys the idea of anyone else's punishment. Punishment and "correction" is a notion that appeals to both liberals and conservatives who are authoritarians within their respective wing - as the article noted, they just differ in their view of to whom it should be applied. I'd submit most authoritarians (left and right) are anti-individualists who had a traumatic upbringing and were subjected to a great deal of sadism that they feel the need to pass along. The author, a prison doctor, a screw, comes across as practically gleeful at the idea of a man's sentence in prison involving cruel and unusual punishment inflicted by fellow prisoners outside the law.

What the author fails to address, however, is that the population *is* divided into two. And those two are not "those who may rightfully be subjected to punishment (a small minority), and those who may not." Rather, those two are common citizens and the people whose job involves carrying weapons and issuing orders, in the name of upholding our republic's laws and contracts. That the people who are given special dispensation to monopolize state violence should have to live up to a higher standard of conduct than others, or face harsher penalties than others, should be patently obvious, and not a matter of partisan debate. Otherwise, a police force would be merely an armed criminal gang as it is in most third world countries where police operate rackets and murder with impunity.

The elephant in the room which the author fails to acknowledge, the difference between common crime and the Floyd case, is that this was murder under color of state power, and an egregious misuse of that trust. Now, an authoritarian might take the view that the state has more right to kill than a civilian. Anti-authoritarians would take the view that misuse of state power is a greater violation than common crime. That is the only framework for this discussion which is not simply an exercise in bad faith by the left or right. It's not the question of whom liberals are howling after at the moment. Because if you lived in a communist country and the police did the same thing to a business owner, you'd be howling for the wrong reasons too. There's only one consistent logic available here that bypasses the moral equivalency of the partisan: That the people who are armed and granted the power of state violence should be subject to the laws they enforce and indeed held to a higher standard.

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Josh Strike
Trackbacks
on June 16, 2020 at 01:13:35 am

[…] had Floyd not been altogether angelic in his own conduct, it is part of a policeman’s duty to deal with awkward customers without killing them in brutal and even sadistic […]

on June 16, 2020 at 01:25:14 am

[…] of his sentence: prisoners, who may have a poor memory for what they themselves have done, have the memory of elephants for policemen. A momentary lapse in his protection, ever more likely to happen the longer his […]

on June 16, 2020 at 02:23:49 am

[…] into the minority such as Derek Chauvin, Harvey Weinstein, and Bernie Madoff who are deemed rightly punishable, and the majority who are not, unintentionally confers on the former a superior status, for only they are held to be fully human, with free will and moral responsibility. Ordinary street robbers or other common criminals, held by penological liberals to be victims of circumstance and not deserving of punishment, are reduced to mechanisms that register what impinges on them as a barometer registers atmospheric pressure. […]

on June 16, 2020 at 09:38:46 am

[…] by Theodore Dalrymple – Law & Liberty […]

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