“Punishment not the main purpose of sentencing in Canada,” said a headline in The Western Star for Jan. 21. No, the main purpose of sentencing in Canada, said the story with that headline, a story appearing also in The Telegram, is protection of the public and rendering the offender of service to society. People who think like that, as most lawyers and judges seem to, must deem society more important than its members; they must think of it as a sort of machine of which specific parts don’t matter so long as the machine functions.
That is false.
“Society” has no existence apart from or more important than its members. It is its members. Its members are their society.
That judges and lawyers don’t know it, or do their best to keep the rest of us from remembering it, does not mean that punishment is not the proper aim of courts and laws. Punishment ought to restore balance to the mind of the criminal, through causing him to experience what is objectionable (the wrong he did) as indeed something objectionable, in a form evident to the senses at least, in case his conscience is defective. (Since what we deserve are our deeds’ effects, any who do what is objectionable deserve to get something objectionable.) Emphasizing protection of the public over that proper purpose means that if it will keep a judge or a lawyer safe a court may pile onto a criminal far more punishment than he might ever deserve. (No wonder courts have to deal so often with person mentally ill; they tend to make them so, because the minds of judges and lawyers lack balance, emphasizing safety over justice.)
Whatever sentence a court “imposes” ought to be one that the person convicted had previously approved, with the other members of his own society, as being fitted to restore moral balance in most who committed his particular crime, which indeed he ought not to have trusted himself not to commit. That means that any sentence a society approves for a given offence ought to be such that a normal person inclined to commit that offence would rather refrain from committing it than suffer the punishment rightly due it, but also such that a citizen devoted to justice would rather endure an equivalent of that punishment than fail to have it inflicted on someone truly deserving it. For failing to do justice deserves also to be punished. And if a citizen is not devoted to justice, he ought not to be a citizen at all in a society which cares about justice – as those currently “in charge of the machinery of our society” apparently do not.
When we depend on laws and courts to protect us, instead of insisting on protecting ourselves, we render ourselves the property, as slaves in earlier times were deemed property, of those who really run the business of the state. What we really need the state for is to punish our failing to do our duty – as it seems now in practice though not explicitly in theory, by way of unjust jurisprudence, to punish us, at least when we disobey its tyranny, for our failing to defend ourselves from the usurpation of our rights.
Colin Burke, Port au Port