We have a long out of date concept in our criminal justice system. That is there exists a debt to society. Not only is it out of date, it was never right to begin with.
If there is a debt incurred it is to the victim of the crime. If the government assumes a duty with regard to crime (instead of vendetta) it is to collect that debt and make a best effort to assure there are no future victims.
We struggle under an arbitrary notion that there must be a one for one correlation between the crime and the punishment. Thus we determine the various forms of murder to be the and rank crimes under them. Next we rank the punishments for those crimes in the same order of severity.
This leads us to a nicely philosophical system where we can debate crime and punishment ordering for hours within our courts. It leads to the consideration of mitigating circumstances to raise or lower the severity of the crime and thus the punishment. This lock step connection between crime and punishment leads only to endless disagreement.
A practical or functional system of crime and punishment would completely divorce the two issues. Crimes are actions we do not wish to occur. Punishments are things that reduce those actions.
There is one further point of importance. If the punishment to reduce the crime exceeds our sensibilities then the law creating that crime needs be repealed. There is no purpose to imposing ineffective punishments.
Our present system recognizes only a debt to society and as such it claims a right to prevent personal retribution by the victim. Were this not the case there would be no moral justification to preventing personal retribution, vengeance if you will. Over time it evolved this debt into an intellectual abstraction rather than a productive activity.
In doing so the debt aspect became an issue of mass interest rather than personal interest. This system leads to our justice system standing separate and apart from the norms of society.
Let us consider the death from both illness and murder of the young and the old. For illness we will spend any money to save an eight week old from death but we hope and eighty year old has a statement prohibiting heroic measures. However in law the murder of either has the same consequences and in fact evokes similar outrage that the extremes of age were harmed.
This occurs as we have a philosophical view of crime rather than a functional view. Certainly in both cases there is no justification for the punishment being other than death for the murderer. But why would me make different judgements as to the same death from illness?
We have emotions involved. We have elevated our emotions to a philosophy of crime and punishment to no observable benefit. We are willing to take a rational view of medicine but not of crime.
Had we a rational view of crime we would be looking for a vaccine to prevent crime much as we look for a vaccine to prevent disease. We would not be concerned with searching for better and better methods to punish crime. Rather we would be searching for means of prevention of crime.
It was truly a radical idea when Pasteur suggested giving the person a minor form of the disease to prevent the disease. It shocked the sensibilities of many. It also worked.
It shocks the sensibilities of many to consider corporal punishment as a means of crime prevention. However, if it works why not use it? It is better to suffer the repetition of the crime?
And this method would also make us face a more serious problem we have. We have many crimes that no amount of conventional punishment will reduce such as drugs. We will have to directly address whether it is truly worth the administration of the effective penalty to have a reduction in the crime.
We may be faced with actually repealing some laws where the only effective penalties are far in excess of the personal debt incurred by the commission of the crime. It is difficult to justify a person is harmed by selling a person a drug and if so who was harmed most, the buyer or the seller?
Obviously the buyer was saved the immediate pain of withdrawal while the seller was encouraged to continue in a very dangerous occupation. But as there would no longer be a debt to society as a functional concept it is not obvious society was a party to any harm in this transaction. There would no longer be the assumption of a common level of harm to all people and that it was done to the buyer.
The harm to society essentially evaporates under this approach save for things like terrorism and assassination. Additionally we would no longer suffer the immorality of exacting punishment as revenge as some god would do without regard to preventing the crime. We would no longer have to play god.