Criminal justice that looks forward


Travel clears the head, offering a new perspective on some of our troubled U.S. institutions.

In this case a visit to New Zealand made me ponder our US criminal justice system, too often dominated by punitive retributive thinking.

A tall Maori man, with a heavy build, stood in the criminals’ box in Blenheim, New Zealand, while his lawyer sat at a nearby table.

The defendant looked older than his twenty years, and yet seemed somehow fragile, a gentle soul.

The crime to which he had entered a guilty plea was far from gentle: drunk one night at a bar, he had physically – not sexually – assaulted two women, knocking them down and kicking one of them.

The women, whose injuries were serious, had, as is the New Zealand norm, submitted a victim impact statement mentioning trauma and ongoing fear.

The defendant was there for sentencing before District Judge Bill Hastings, who hears cases in different cities on different days, a custom designed to protect impartiality.

As a visiting faculty member for two weeks in Wellington, I had met Bill through mutual friends and he had invited me to sit on the bench with him.

Not surprisingly, I experienced the day as an American worried about our own retributive system of criminal justice, and I learned a great deal that reflects on our current American debates.

In the defendant’s favour were quite a few pieces of the case file, which Judge Hastings read out while I peered over his shoulder.

It was his first offense.

He had been undergoing severe depression, self-medicated by alcohol, but had already gotten his problem under control.

He had been willing to go into the “restorative justice” program, in which the criminal and victim discuss the event, led by a mediator, attempting to arrive at a reconciliation strategy – but the other side had refused.

He had numerous letters.

His tribal “Auntie” described his gentle temperament.

His mother, in a lengthy hand-written letter, not only supported that picture but mentioned that the mother of one of the victims had introduced herself to him and to her after church, and offered forgiveness.

His brother, sitting in the courtroom, had written that the assault is “one hundred percent” not who he is.

And his employer, a courier service, wrote quite a detailed letter saying that he was always on time, got on well with others, and in short was “a valued member of the FastTrack team.”

The recommended sentence of community confinement, would, his lawyer said, prevent him from working and so impede his rehabilitation.

Bill addressed the defendant in a manner that was both decisive and what I can only describe as friendly.

Bill is very funny and does not take himself too seriously; warmth animates his voice and face.

He announced – as he had repeatedly during that day – that his job was to do three things: to denounce the crime; to deter others from committing a similar crime; and to encourage rehabilitation.

He then did denounce the crime and its emotional damages, but he said that instead of the recommended penalty, which would jeopardize employment, he was ordering alcohol and anger management counselling and the payment of a relatively hefty sum ($300) to each of the victims to compensate them for the emotional damage. Continue reading

  • Martha C. Nussbaum is the Ernst Freund Distinguished Service Professor of Law and Ethics at the University of Chicago.
  • Image: Wikipedia
Additional reading

News category: Analysis and Comment.

Tags: ,