Buzzby

Unequal Under The Law
Sina Kian | The Cavalier Daily | 02/03/2005

THE CONCEPTS and purposes behind justice and punishment are often blurred and their complexities taken for granted. Perhaps somewhere among thousands of years worth of volumes and classes lies a perfect characterization of justice, but hardly anyone would argue that perfection of a definition is a prerequisite to a satisfactory system.Today in Virginia, judges are strongly recommended to adjudicate cases and penalize defendants before them according to a risk-based point system jurisprudence, a jurisprudence with fundamentally flawed assumptions about the purpose of America's legal system.

Virginia's long standing "tough-on-crime" mentality has not been a well-kept secret: In 1993, Virginia's incarceration rate was 346 of 100,000 residents, 18th overall in the nation. In 1994, Virginia passed several "tough-on-crime" measures and shortly thereafter faced the necessity to build new prisons.

Rather than build these prisons, however, Virginia opted to formulate a risk-based point system jurisprudence. The idea is elementary: discover and evaluate the risks certain groups pose to society, identify those that pose the least threat outside of prison, generate a point system where individuals belonging to the riskiest group have the highest points and punish individuals based on the risk they present to society. For example, a single, jobless 23 year-old will receive a harsher punishment for purchasing marijuana than a 35 year-old married man who commits the same crime, and the latter will be more strictly penalized than a 40 year-old married woman who has an equal affinity for Puff, the legendary magic dragon.

Ultimately, the riskiest individuals spend more time in jail, while the least risky more easily escape the dreadful prospect of prison, and, on average, society is better off because, on average, risk has been minimized.

However, such a superficial argument is but a thin guise, and to a trained nose, it reeks of legal utilitarianism, a doctrine propounding the idea that the purpose of law is to maximize public utility, or happiness, as well as minimize public displeasure. These ideas are analogous because Virginia's policy aims to use its legal system to minimize risks, while utilitarianism would use a legal system to minimize public pain -- two obviously related goals. The prima facie appeal of this legal dogma is quickly dispersed by several post hoc realizations.

To say that the main justification for a legal system is to maximize public utility wrongly implies that justice is not a matter of blameworthiness, but a matter of what makes the public happy. The Salem witch-hunts had an essential foundation in such a philosophy –- law is not to determine whether or not she is a witch, but to ease the public's fear of witches by eradicating distasteful or suspicious individuals. Such a philosophy,is morally suspect to say the least and should not find a home in modern legal systems.

Furthermore, a system that deprioritizes blameworthiness begins to offend our Anglo-American sense of legal purpose. More specifically, when a defendant is summoned to court and seated next to a prosecutor, he is on trial for the particular crime he committed. This is announced by the Court at the beginning of the trial, and again reasserted in Court papers that clearly state what the defendant is on trial for (the specific crime at hand). According to Virginia's system, however, this legal vehicle is parked and replaced by the public utilitarian model, in which the defendant is being judged for more than simply the crime he committed. In its weak version, this model punishes an individual on his second crime for not only his second crime, but his first crime as well, arguably a veiled version of double jeopardy.

In Virginia's stronger version, the individual is also punished on the record of those similarly situated, meaning if 18 - 24 year olds are more likely to continue purchasing marijuana than other age groups, than a defendant accused of purchasing marijuana would be unlucky to be 18 -2 4. Thus even though our 23 year-old committed the exact same offense as our 40 year-old married woman, there can be a huge disparity in punishment. According to the New York Times, "single men in their 20's start with 36 points [which is a few points short of jail recommendation] on Virginia's risk scale, putting them on the cusp of going to prison before the crime they committed is even taken into consideration." The injustices presented here, as Thomas Jefferson may have said, are "self-evident."

According to statistical analysis done by Virginia's commission on the subject, the system accurately predicted who would be reconvicted in about 75 percent of the cases. While that number is impressive, there still remains the 25 percent who suffer harsher punishments merely because Virginia's legal system never gave them a chance.

There may be constitutional objections to this system, probably anchored in the equal protections clause, but today's conservative Supreme Court is unlikely to approach such claims in a friendly manner, and if given the chance to do so, they would probably give legitimacy and preponderance to Virginia's public purpose claim.

Virginia's abhorrence to spending money on new jails coupled with its bull-like tough on crime mentality creates an inherent tension in the system. Given this tension, there are three options: shorten jail terms on non-serious crimes, build new prisons or impede on individual rights in the legal process. As a state traditionally invested in the protection of civil liberties, the answer to such tensions should not and cannot be exchanging and trampling individual legal rights in the name of ostensive public risk aversion.

Sina Kian's column appears Thursdays in The Cavalier Daily. He can be reached at skian@cavalierdaily.com

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Burninbrooke

AUUGGHH!! I can't believe this is happening in "The land of the free". I swear I'm moving to Australia or Canada. It's sickening how little the general population actually knows about what is happening in this country.

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"We need to change our ethic and aspire to be more Canadian-like,"

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