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Justice is a concept that has bewildered even the greatest of philosophers. For some, it is generally understood as what is that which is fair and just. From the point of view of criminal justice system, when a criminal act is committed against a victim, justice can only be achieved when the criminal act is redressed. This may involve the payment of a fine or penalty or the rendering of community service. If the crime committed is so heinous that it shocks the moral conscience of the society, the penalty may involve imprisonment for longer period or time or even the penalty of death.
The idea behind this concept of justice is that when a crime has committed the harmony and balance in the society is upset. The victim who suffered the injury will never be whole again. The only thing that could restore this balance and make the victim whole again is when the offender is held accountable for his crime. The offender must, therefore, be punished for his actions. This is one of the more common theories why punishment like the death penalty is imposed. Justice is therefore simply giving to everyone what is due to him or her.
From the point of view of the criminal justice system, they consider that society needs this kind of punishment. According to Retributivism Theory, capital punishment is allowed as a form of punishment because the convicted prisoner deserves it, this is otherwise known as the concept of ‘just desert’. It is founded on the philosophy known as the ‘eye for an eye, tooth for a tooth” or the jus talion principle.
When an injury is done to another, an unfair situation is created and the imposition of punishment against the wrongdoer removes the unfair advantage and restores the balance. It is as if the wrongdoer owes a debt to another. It is only by applying the principle of retributive justice that both the victim and the offender will be restored to their original positions prior to the commission of the crime. (Michelle Maiese)
The Jus Talionis principle was firmly advocated by Immanuel Kant as he gives legitimacy to the power of the state to impose the capital punishment. (Immanuel Kant, the Right of Punishing) Contrary to the Utilitarian Principle, this should be imposed not because it will benefit the society if this is done but simply because the accused after undergoing the criminal justice process was found to be guilty of committing the crime. In essence, this theory states that certain actions in the society that are injurious to other people will merit the imposition of imprisonment. When these acts are done willfully and voluntarily by any individual then it is but proper that he be punished for his acts to so that justice will be given to both the victim and the offender.
There some however who are apprehensive about the concept of just desert. The arguments against the concept of Retributive Justice are centered on its morality and ethics. (“Retributive Justice”) The main argument is that it is immoral and unethical because “two wrongs do not make a right.” Inflicting the penalty of death upon another human being will not rectify the mistake the offender has committed in the past. It will not heal the wounds inflicted on the injured party. It will not appease the society by killing another human being. Instead, it only creates a culture of violence that will perpetuate further violence in the society.
Another argument is that they view the concept of the just desert as dangerous since it has a tendency to degenerate to vengeance. In our desire to give to the offenders what is due to them we forget that it is possible that the criminal justice system may have erred in rendering judgment against the offender. There have been so many cases in the past where those who have been previously convicted and determined to have committed a crime were later on exonerated by developments in our technology. When we mistakenly execute an innocent person, such person will no longer be able to prove that he is innocent of the crime for which he was being held accountable for. He will no longer be benefited by any improvements in technology and the discovery of new evidence that may in the future establish his innocence. Indeed, it is an irreversible process.
The concept of the just desert or retributive justice is also criticized because it fails to consider that even murderers and thieves are human beings who are capable of committing mistakes. No one is perfect. We are all capable of making wrong decisions in life. By executing them they will no longer have the opportunity to rectify the mistakes they have done in the past. This is considered as the essence punishment – so that the person will realize that he had done a wrong to another person and that he should not repeat the same mistake again and be a better person.
After evaluating the arguments presented by both sides, I am more inclined to accept the view that the concept of just desert is harmful to the society as a whole. If just desert will continue to be adhered to as a policy in the criminal justice system, then restoration, forgiveness, and rehabilitation will be forever neglected. This should be the essence of our criminal justice system. Punishment must be imposed so that everybody will know that they have made a mistake and so that they will be given the second chance in life.
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