THE CONCEPTS and purposes behind justice and punishment are often blurred and their complexities taken for granted. Perhaps somewhere among thousands of years worth of volumes and classes lies a perfect characterization of justice, but hardly anyone would argue that perfection of a definition is a prerequisite to a satisfactory system.Today in Virginia, judges are strongly recommended to adjudicate cases and penalize defendants before them according to a risk-based point system jurisprudence, a jurisprudence with fundamentally flawed assumptions about the purpose of America's legal system.
Virginia's long standing "tough-on-crime" mentality has not been a well-kept secret: In 1993, Virginia's incarceration rate was 346 of 100,000 residents, 18th overall in the nation. In 1994, Virginia passed several "tough-on-crime" measures and shortly thereafter faced the necessity to build new prisons.
Rather than build these prisons, however, Virginia opted to formulate a risk-based point system jurisprudence. The idea is elementary: discover and evaluate the risks certain groups pose to society, identify those that pose the least threat outside of prison, generate a point system where individuals belonging to the riskiest group have the highest points and punish individuals based on the risk they present to society. For example, a single, jobless 23 year-old will receive a harsher punishment for purchasing marijuana than a 35 year-old married man who commits the same crime, and the latter will be more strictly penalized than a 40 year-old married woman who has an equal affinity for Puff, the legendary magic dragon.
Ultimately, the riskiest individuals spend more time in jail, while the least risky more easily escape the dreadful prospect of prison, and, on average, society is better off because, on average, risk has been minimized.
However, such a superficial argument is but a thin guise, and to a trained nose, it reeks of legal utilitarianism, a doctrine propounding the idea that the purpose of law is to maximize public utility, or happiness, as well as minimize public displeasure. These ideas are analogous because Virginia's policy aims to use its legal system to minimize risks, while utilitarianism would use a legal system to minimize public pain -- two obviously related goals. The prima facie appeal of this legal dogma is quickly dispersed by several post hoc realizations.
To say that the main justification for a legal system is to maximize public utility wrongly implies that justice is not a matter of blameworthiness, but a matter of what makes the public happy. The Salem witch-hunts had an essential foundation in such a philosophy
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