After years of practicing criminal law, I sometimes still find myself pondering the basic moral questions that got me interested in this practice to begin with. A client was in the office today, a young man who became addicted to prescription pain pills after a construction accident and started selling pills to support his habit. He is facing a mandatory period of incarceration and seemed completely lost and confused. Why are they trying to punish me so much, he asked. I had no good answer.
What is the justification for punishment in the criminal law? Whole philosophical careers have been spent on the issue. Generally, the reasons we punish break down into two groups - the consequentialist/utilitarian theories and the deontological theories. The utilitarians punish criminals because doing so advances the total good in the world. It deters the offender himself and it deters others from committing crimes, for example. A deontologist, or rights-based theorist, would say that we punish a person because he deserves it. Punishment is right because it is earned.
I think that just deserts is a necessary precondition for punishment, but it isn't enough of a justification by itself. I think that rehabilitation needs to be the primary justification and goal of punishment. Essentially, we punish folks who deserve to be punished in order to correct their behavior and allow them to re-gain full and unrestricted membership in society.
I would never send my client to jail, and I don't believe an average person would want him in jail either. Luckily, there are some reasonable prosecutors out there who agree that second chances are important. My goal is to use my persuasion and negotiation tactics to get my client into rehab and drug treatment to avoid jail. I'll say a small prayer tonight that I am successful.