The Rights of the Guilty - A Treatise on Crime and Punishment author:Andy Carloff source_url:http://www.articlecity.com/articles/politics_and_government/article_109.shtml date_saved:2007-07-25 12:30:16 category:politics_and_government article:
Introduction When philosophers and social critics speak of justice, there is always a great emphasis spoken about protecting the public by imprisoning those who pose a harm to the public.
Then, with observations upon the mechanics of society, these philosophers sought out not only to defend the public, but to defend those accused by the public.
To simply imprison a man or woman on a crime was not enough.
Individuals who have been accused of crimes must be allowed to face their accusers.
Before anyone is imprisoned, they must be convicted by a jury of peers, based on evidence.
Every person is innocent until proven guilty, and the idea of "guilt until proven innocent" is a cruel, foolish idea that must be disbanded altogether.
These basic premises have been created to defend those who are accused, the public, the society, and, in general, those who are innocent and deserving of protection.
All so often, there is a defense of the rights of the innocent, whether it is the public or the unproven accused.
What, however, often seems lacking from these theories of justice are the rights of the guilty.
I have heard so many stories of people who allow their darkest memories to overtake their compassions.
I have heard confessions of men and women who allowed their passions to become sick and twisted before they became humane and kind. "Those men who are guilty of rape," I have heard, "Should be tortured.
They should have their testicles removed and they should be murdered, and then brought back to life to be killed again." I have heard such cruel stories of torture, brutality, and inhumanity that should be, or was, given to the guilty.
Passionate mothers speaking about the potential brutalities that should be given to pedophiles.
Impassionate conservatives speaking about the long and violent prison sentences that should be given to drug dealers and users.
When a person has their son, daughter, spouse, lover, mother, or father murdered, they sometimes make a plea that the guilty should be tortured to death -- while other times, their passion is expressed in a beautiful manner, and they make plea of society to be just, generous, and fair.
When I speak of the rights of the guilty, I am not talking about those wrongly convicted of guilt, or those potentially convicted on unfair grounds.
I am speaking of those who have, by all our understanding and reasoning, committed the crimes that they did -- the truly guilty.
It is within this essay that I shall make an attempt to defend the rights of those who have broken our laws.
A Defense of the Guilty When I make a defense of the guilty, on what grounds can I make it?
When we begin to think about those who fill up the category of guilty, such as murderers, rapists, thieves, and other assorted lawbreakers, we immediately think about terminating their rights to protect society.
The right to liberty, for example, to walk around and do as you will, is immediately stricken from those who are convicted of murder or rape.
Those very basic rights that are granted to everyone, even the right to vote, are restricted by those who have committed harsh enough crimes.
Amidst all these claims that the public must be protected from the criminal element, there are shouts for vengeance, for "justice," for punishment, even for torture and execution.
So, why would I, or anyone for that matter, defend the guilty?
To answer this question, allow me to create a hypothetical scenario.
Imagine that someone is convicted of a misdemeanor, or some small petty crime, whatever it may be.
Perhaps it was something as simple as running a run light, or not stopping at a stop sign.
Perhaps it was something a bit more complicated, but not more criminal, such as drunk in public, or trespassing, or jaywalking.
Perhaps it wasn't just the crime alone that needs to be taken into consideration for this hypothetical scenario.
Just maybe the convicted criminal in this case was unaware of the laws.
Or, perhaps, the laws were created as a restrictive force, arguing that drunkenness or jaywalking are not in themselves unjust, but could possibly lead to unjust results, such as violence or physical harm.
And, in violating these laws, our criminal did not cause violence (because he was drunk) or did not cause physical harm (because he was jaywalking), so he kept in the spirit of the laws.
Taking this scenario one degree further, perhaps this convict is a productive member of society, who generously gives some of his payroll to non-profit organizations, and is active in Democracy.
And, finally, perhaps this convict had a legitimate reason for breaking the law.
Perhaps he was drunk in public because he was drunk at a friend's house, but was then thrown out into the street.
Perhaps he was jaywalking to avoid a gang of kids that seemed intimidating.
With all these things considered, we have my hypothetical scenario.
Would we be just and humane, if we were to strip this convict of all rights?
If we subjected this man to torture, to endless time in prison, to execution, would we be just?
Certainly not.
When we are examining this one case of this convict, I imagine no reasonable person would want to visit much of any punishment to this convict.
In fact, no reasonable person would say that this person -- admittedly guilty -- should be denied rights.
While this person did commit a crime, why should we deny that he has rights?
Some people may continue with their diatribe, "Once guilty, a person has no rights!
Once a person has committed a crime, they have no rights!" But, the more we consider this scenario I brought up, the more I think people will be convinced that being guilty alone is not enough to strip a person of all rights.
Now, let me take the previous scenario and slowly strip away different aspects.
Perhaps the person who committed jaywalking or drunk in public is not a productive member of society.
Perhaps they do not contribute to non-profit organizations or are productive members of society, or had a legitimate reason to commit the crimes.
Perhaps it was a restrictive law that, violated by the criminal, did in fact lead to violence and physical harm.
Then, let's change a few other things.
Maybe it wasn't something as simple or harmless as jaywalking or trespassing or public drunkenness.
Perhaps it was something a bit more serious, such as aggravated assault, or grand theft auto, or breaking and entering.
Maybe burglary was involved.
Let's upgrade this scenario to even more devastating crimes.
Perhaps it really was rape, perhaps it really was murder.
In the initial scenario, an honest, hardworking person committed a crime that harmed nobody, while holding a very legitimate excuse for it.
In the final scenario, after all the alterations had been made, a criminal had committed a crime that did in fact harm others without holding any legitimate excuse at all.
In the first scenario, of a man who has committed the crime of perhaps simple jaywalking, it seems that everyone would be in agreement that he should not be stripped of his rights -- at least, certainly not all of them.
We should not simply offer him up to the butcher's blade or to the stake that we might burn him.
Certainly not.
That would be the very definition of cruelty and inhumanity.
That is not to say that such simple crimes have not met such brutish punishments.
In other times and other nations, simple crimes have met with such inhumane sentencing.
When we look back to these accounts, of such simple people inflicting such horrendous pain, for a moment, we are convinced that civilization has brought more misery than it has alleviated.
Poets in these sad times would count stars, hoping to find some sort of god that would promise them a peaceful, happy end to what has been a struggle through life.
Some of them would found a religion in mortal death, treating the wispful moments as poetry dedicated to a better future.
And, fortunately, my friends, we have reached a better era.
When we look at the second scenario, of a man who has committed murder or rape, we see that the same attitude is not given to them as the man who committed the simple crime of jaywalking.
Attitudes vary greatly.
The man who committed the simple crime that harmed no one: nobody believes that he should be stripped of all of his rights.
But, the man who committed the terrible crime of rape or murder, there is a great amount of people who are ready to inflict insurmountable suffering, torture, and miseryon to these convicts if the law permitted it.
The curse of the death penalty is still existent in this part of the world.
So, when we are comparing these two lawbreakers, what is the point I am trying to demonstrate?
To that, I shall say in the next section...
The Rights of the Guilty Before discussing the question of the rights of a convicted rapist or a convicted murderer, let us discuss the questions of the rights of a petty criminal.
Let us consider the rights of a person who committed a simple crime, such as jaywalking, and let us use the above illustrated example of this criminal -- who is only a "criminal" by definition of a person who has broken the law.
I imagine that there is a consensus that this man should not be stripped of his rights.
He certainly does have some rights that must be considered and accepted.
For example, even though he is convicted of breaking the law, in America he still has the right to freedom of speech (first amendment), he still has the right to life, liberty, and property, and none shall be taken from him without due process of law (fifth amendment), the right to a sentence that doesn't involve cruel or unusual punishment (second amendment), among others that can be found in the bill of rights.
But, when giving this guilty man rights (emphasis on guilty, because this is the point of question in this essay), it is obvious that he is deserving of these rights.
However, as a criminal, it is clear that certain rights will be taken from this manner, at least restricted.
For example, if this man committed a simple crime such as jaywalking, and the state feels impelled that he ought to be held accountable for his crime, perhaps they will ask that he pay a small fee or spend one or two days in jail.
He still retains his right to vote, his right to freedom of speech, his right to be secure in his own possessions, life, and liberty.
There is a restriction, though.
If he pays the fee, that restriction will be interpreted as a restriction of property.
If he spends the one or two days in jail, that restriction will be interpreted as a restriction of liberty.
Once he has paid for the crime in which he has committed, then he shall be allowed to pursue the rest of his life as he sees fit, and the state (or the public) shall have nothing to do with him again until his mischeviousness acts up again.
Perhaps his crime was slightly more extreme and actually harmful to society.
Perhaps the crime was petty theft, shoplifting a