The somewhat gruesome public spectacle of the ongoing Johnny Depp and Amber Heard trial is only a case in point—whatever it is we’re watching, it is hardly a rationally organized process of finding the best solutions for healing of relationships, the restoration of personal dignity, and guidance towards desirable future behaviors.
If we take these goals (relational healing, protected personal dignity, and behavior change in pro-social directions) as being the “rationally desired” outcomes of our judicial processes, it is difficult to see why the current consensus of criminal justice would be the best possible one.
Whereas our legal systems do, after all, have considerable leeway for case-to-case adjustments (there are scales of sentences, age limits, ameliorating circumstances, and so forth), they are — on the whole — not capable of truly managing the unique complexities of each social situation, of the specific tragedies of the humans involved: their narratives, their emotions, their behavioral responses. To sum it up, we could note that:
– The communicative process of the trial itself is not optimized for personal expression and mutual understanding — and this means that the parties communicate at, to put it mildly, a less-than-optimal level of clarity and self-knowledge.
– The parties involved in the trial are not supported to deal with the often exceedingly emotionally difficult situation that the trial entails.
– The actual emotional and material needs of the victimized side are not brought to the fore, nor sufficiently developed to their end-point: Do they seek safety from further transgressions by the offender, do they desire revenge, do they seek the restoration of personal dignity, do they wish to hear a sincere apology, are there economic or practical needs that should be addressed?
– The legal sanctions, punishments, or other consequences are not argued for in terms of behavioral-scientific terms, given the specific profiles of the people involved — they are simply assumed to be “just” because “the people” (represented by parliament) have laid down a certain law.
– The actual results in terms of healing, restoration of dignity, and behavioral changes (or learning, or new self-awareness, or changes of attitudes) are not followed up upon, recorded, and learned from for future cases.
– No list or battery of different possible, case-tailored, interventions is consulted and drawn upon for the optimal expected results given the specific personal profiles and needs of the parties (nor are the results of such interventions recorded for future uses).
– And, as already in part mentioned, no psychological-behavioral profiles are made of the parties that would help predict which interventions would be the most likely to have desirable long-term effects.
In short, there are very little “rational” processes involved in our systems of justice. Rather, the prevailing sense of justice appears to be based upon a kind of “civic religion”, where we have faith in our police, prosecutors, attorneys, and judges as enactors of an abstracted “will of the people”. The early system of laws from Babylonia, Hammurabi’s code, purportedly rested upon inspiration from the god Marduk. Perhaps, today, we are not all too different — except our “god” is this abstracted “will of the people”.
But when we turn to this “the people” as the source of our justice and all judgments made, it seems to dissolve into thin air: who exactly is it that wills that this particular person should be sentenced to six months in prison, not four, nor seven? Popular sentiments very often wish for fiercer punishments and feel outraged at how easily many of our criminals get off the hook after even the cruelest behaviors. It is quite clearly not the people or community that genuinely “wills” the sentences into being. And by what rational arguments do we make such drastic interventions? If we, for instance, by force imprison a person, would it not be reasonable to ask of our justice system that it has genuinely sound, case-specific, arguments for doing so — in that particular case?
Or to put it differently: The decisions made by our courts are arguably as crucial and important as the medical decisions made by doctors or psychiatrists. Would we trust in the soundness of medical decisions that were based not on diagnostics of the specific case and best practices according to medical science, but upon fairly arbitrary rules of thumb laid down by “the will of the people”? If your doctor did not take tests and consult medical journals, but simply said that “the law states that a person with your condition should have this treatment”, would you feel that “medicine has been done”?
Our current criminal justice is neither just nor rational — but what could a future direction of its evolution be?
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