Peter Gabel has some great ideas and some great sentiments. He wants to make life more perfect and more “fair” based on respect for each person’s inalienable humanity. I share those sentiments, and am sure that most of us do.
The problem is that life is, and always will be, imperfect and complex. So it is the function of government to address that reality and to try to set up less imperfect, more understandable systems that provide us with positive incentives for more humane and less harmful behavior. But, in this regard, we must be mindful of the other institutions in society that can accomplish those goals far better than courts or the government. In fact, there are many situations in which government simply is not able to provide those results at all, even though they are desirable. And when it tries to do so, it often ends up in its present state—a “government of good intentions,” that achieves poor and even harmful results.
Traditionally there are four types of decision-making institutions that try to resolve disputes and instill more humanity in our society: family, religious institutions, social institutions, and the courts. Mr. Gabel focuses mostly on the courts, and argues that they should base their decisions more upon fairness and people’s humanity than does our present judicial system, which employs an “individualistic,” “adversarial,” and “rights-based” way of thinking about law and the very rationalistic Enlightenment paradigm. The eternal problem with his approach is: humane and fair according to whom? In Mr. Gabel’s proposed system, virtually all people will be thinking to themselves,“Let’s be reasonable in finding a fair system—let’s do it my way.” So not only is this approach unworkable, it is virtually guaranteed to produce inconsistency, bad feelings, and conflict. And, contrary to Mr. Gabel’s assertions, the adversarial system, with its emphasis on cross-examination, is quite effective in revealing the truth and resolving disputes.
The Need for Precedent
Today our system of justice, with all of its imperfections, tries to provide foreseeability. In fact, since it’s simply not possible to litigate all issues, establishing legal precedent is one of the legal system’s most important functions. Thus it is based upon that very adversarial, individualistic, and rights-based approach that Mr. Gabel decries. But realistically that is the most effective system to employ. For example, if some people burglarize your house, the burglars should be held responsible for their actions, bad childhoods or gambling problems notwithstanding. Yes, those issues should be taken into account at time of sentencing, and the courts should try to address the roots of those problems, but to excuse offenses because the perpetrators didn’t get enough love or humanity in their lives is simply not workable.
So the fatal defect in Mr. Gabel’s approach is that no standards can be proposed for guidance. In other words, what happens in one case will not furnish any guidance in how best to resolve the next one. For example, how would or should “humanity” and “fairness” affect whether the warranty on the defective toaster you just purchased is enforceable? If the manufacturer means well and has recently given large donations to a number of worthy causes, should the company be excused, or even treated differently? Or if a priest runs a red light and injures a pedestrian, should the victim be forced to forgive appropriate compensation because the priest is a good person? Such a proposal is unworkable and inequitable, and when forgiveness is forced upon victims by the concept of “you lose because I say so,” it creates the raw materials of a violent revolution.
Not that the concept of humanity should be disregarded. On that subject, allow me to tell a story:
One of the true heroes of my life was my father, William P. Gray, who was a wonderful and highly respected judge of the United States District Court in Los Angeles. On one occasion, when my father took my mother with him on a fact-finding tour of the federal prison in Lompoc, California, the warden told them that the inmates would be having a talent show later that afternoon, and asked if my parents would like to attend. Of course, they said yes. So in the first row sat the warden, with my father next to him, then my mother, and next to her an inmate. Just to pass the time, the inmate said to my mother, “You may not know this, Mrs. Gray, but your husband was the judge who sentenced me to be here,” whereupon my mother got a bit nervous. The inmate continued by saying, “And, yes, he actually gave me a maximum sentence,” whereupon my mother started leaning away from him and toward my father. “But,” the inmate went on, “your husband treated me with such respect and fairness throughout all of the proceedings that I consider him to be the finest judge I have ever had—and I have had lots of judges.” The message is that, regardless of whom we are dealing with, everyone should and must be treated with respect. People can tolerate losing their cases, but they cannot and should not be forced to tolerate disrespectful treatment. My great father innately treated everyone with respect, as Mr. Gabel advocates. But the problem is that respect cannot be effectively legislated or otherwise mandated, which means that it simply cannot be the basis for a justice system.
So, yes, Martin Luther King, Jr. was right in saying that “justice is love correcting that which revolts against love.” But in seeking that love, the courts will be mostly ineffective. Instead, religious institutions are well suited for this purpose because they stimulate people to voluntarily do the right thing. So, as the saying goes, if we take away the influence of religion, we will never have enough police.
Reforms for the Current System
Nevertheless, even though the legal system could use more help from families and religious and social institutions—namely, that they step up and resume their rightful place as effective moral leaders and dispute-resolvers in our communities—the legal system can certainly do its part. The best way to make this happen is to set up systems that are fairer, more transparent, and far less complex. In that regard, here are five specific suggestions about how to place incentives in our legal systems to make them more humane and less complex, and thus more effective in realizing Mr. Gabel’s truly worthwhile goals:
Repeal all “three strikes” and mandatory minimum sentencing laws. No one can decide a reasonable criminal sentence without first knowing who the perpetrator is, what the circumstances of the offense are, who the victims are, and how much, if at all, the victims were harmed. Under the present laws, genuine injustices are being done to criminal defendants and their families, as well as the taxpayers.
Hold adults accountable for actions that adversely affect others, instead of for what they put into their own bodies. The criminal justice system is quite effective at addressing the harms people receive from others, but it is terribly ineffective and often inhumane in trying to protect people from harming themselves. For example, despite attempts to protect people from themselves by imposing a system of drug prohibition, dangerous and addictive drugs are still fully available to anyone who really wants them. But along the way, our failed and hopeless approach has placed mind-boggling amounts of money into the hands of juvenile street gangs and filled our jails and prisons, all of which has in turn mightily contributed to the breakdown of many families.
Encourage your local trial courts to practice restorative justice. This approach favors a shorter period of incarceration for nonviolent offenders, and then requires those offenders to meet personally with those affected by their actions, to learn about the human consequences of their decisions. Sometimes offenders are required to get a job and reimburse their victims for the cost of the damage done to them. These programs benefit virtually everyone concerned. The offenders learn that it is both expensive and hurtful to commit offenses. And having 20 percent of their wages garnished to reimburse their victims, in some cases, means that the offense is not something they will want to repeat. The offenders’ families don’t have to go on welfare as frequently because parents are taken from their homes for a much shorter period of time. The victims, reimbursed by the offenders, feel that justice is being done, and their insurance rates also come down because the reimbursements are mostly passed along to their insurance companies. And society as a whole benefits, not only in seeing that offenders and victims are more fairly treated, but in sparing taxpayers from having to dig so deeply into their wallets to incarcerate offenders. Thus everyone comes out ahead, except for the prison guards’ unions.
Also encourage your local officials to implement specialized criminal courts for people who are homeless, military veterans, mentally ill, and/or addicted to drugs. These courts are working virtual miracles in Orange County, California, and elsewhere, by helping these often-fragile people live more responsibly and to the best of their abilities with the support of counselors, medical professionals, and positive incentives.
Help set up and reinforce the social institutions that mentor our children. If that critically important job is not performed by parents, scout leaders, basketball coaches, or religious leaders, it will be carried out by juvenile street gangs or other criminals. Say what you will, Charles Manson was brilliant at mentoring his “family” of lost souls, and people like him are always lurking, prepared to fill the same role.
In summary, the best way to achieve Mr. Gabel’s noble goals is, first, to recognize what can and cannot be accomplished by the various decision-making institutions in our society, and then to try to equip them to perform optimally in their areas of influence. Clearly the courts have critically important roles to play, but so do familial, religious, and social institutions. As for the courts, establishing equitable and understandable legal systems in which positive incentives encourage people to conduct themselves in more humane, productive, and harmless manners, and in which people can reasonably foresee the results of their behavior and that of their neighbors, will maximize humanity and fairness. Yes, life is imperfect, but we can and should make it less so.