Justice and Crime in the Same Sentence?

September 30, 2009
Posted by Jay Livingston

The Roman Polanski case – or more accurately, the reaction to it – should serve as a reminder that ideas about punishment are usually less concerned with its effect on criminals than its effect on non-criminals. We want crime policies that make us feel good, regardless of their effect on crime. We call this “justice.”

Some of Polanski’s supporters argue that he has suffered enough. Critics like Gautham Nagesh caustically shred that logic, arguing implicitly that no, he hasn’t suffered enough, he should suffer more. And while those on both sides, especially the Nageshes, claim to be concerned about child rape, nobody has anything to say about how what happens to Polanski will affect actual child rape. That’s partly because nobody really knows, but mostly because what’s at issue is not crime; it’s justice.

Polanski committed his crime thirty years ago and since then has, as far as anyone knows, committed no others. The idea that sending him to prison now will prevent crime by incapacitating or rehabilitating him is out of the question. It’s also hard to argue that punishing him now will deter other potential child rapists. No doubt, some people will argue that the case, especially because Polanski is famous, will “send a message,” but there’s no evidence that what happens to Polanski will have any effect. Besides, if Polanski is so important, why have these people not been urging his arrest and extradition for the last few decades?

Often, the justice-seekers claim to be proxies for the victim, especially in murder cases. They demand the death penalty, carrying signs that say things like “Justice for Jessica,” though Jessica, unfortunately, no longer walks this plane to enjoy the justice that will come from the execution.

The Supreme Court has agreed with this use of the justice system as a vehicle for personal feelings. Victims and relatives may now make “victim impact” statements that affect sentencing. Unfortunately for the justice-seekers in the Polanski case, the victim herself is on record as wanting no further punishment for the criminal. In fact, she issued a statement that the further pursuit of the case is hurting her and her family. So, as with the “justice for Jessica” types, it’s clear that the feelings the justice-seekers are concerned with are their own.

Arguments about justice are fine for a case in the headlines. That’s probably why the case is in the headlines – it’s a vehicle for justice, a vehicle that we can all ride on and try to steer in the direction we like. The trouble arises when we use these cases and our reactions to them as the basis for policies on sentencing, and when we think that the sentences that satisfy our sense of justice will also bring less crime.