Since some 95% of the criminal cases in the United States of America are concluded by plea bargaining, as I was considering witness protection programmes in last week’s column, a thought struck me. If someone murdered my mother and ‘cut her open and put charcoal inside her to use as a grill’ (to quote from the last column) and it was proposed that that person be allowed the comparatively lenient sanctuary of a witness protection programme as punishment, should I not have a say in the making of such a decision, and what kind of considerations should ideally motivate my involvement in such a process?
I was taken aback by my quick resort to a revenge response and thus was somewhat reassured when I reminded myself that as part of its humanizing agenda, the ‘general will’ of a society should and usually does consistently hold and seek to transmit higher moral values than its constituent parts. So although my seeking revenge for the murder of my mother may be understandable, the ‘general will’ would support my position only if it contributes to society’s humanizing project.
In this regard, victims, perpetrators and the legal system need to consider the implications of the ‘just deserts’ theory of retribution, which suggests not only that victims do have various kinds of interests in plea bargaining that can be properly accounted for only by their involvement but also proposes approaches which would aid in restoring the moral order between individuals and thus contribute to the humanizing effort of the ‘general will.’
Internationally, victims traditionally had little or no say in plea bargaining negotiations, but this has been changing. Indeed, by sections 8 and 11 of Guyana’s Criminal Procedure (Plea Bargaining and Plea Agreement) Act of 2008, the prosecutor has to obtain the views of the victim or relatives before completing a plea bargaining agreement and should thereafter inform them of the decision that was made and the reasons for it being made. The judge is also required to obtain the views of the victim and relatives in open court before making a final decision.
The state is usually concerned about taking criminals off the streets as quickly as possible whereas the victims and their relatives are normally focused on retaliation and financial compensation for their loss, and one needs to take this into consideration. But should these be the only or even the main concerns during plea bargaining negotiations in a well regulated society?
As I understand it, the ‘just deserts’ theory holds that criminal behaviour constitutes a violation of the natural, moral order of society, which deserves compensation of some kind. A criminal is punished because s/he ‘deserves’ to be punished. But the punishment is constructed in the human context of our accepting that we all make good or bad and right or wrong decisions for which we are rewarded or punished, and that any punishment should be proportional in that a criminal must be punished only to the extent necessary to restore the moral order of society. Retribution is focused upon restoring ‘right’ relationships as laid down by God or custom, among individuals and between individuals and their community.
Retribution justifies and provides the goals of punishment, while in the legal system restitution consists of the sanctions used to achieve a retributive goal. But as indicated above, restitution is usually viewed narrowly, mainly in terms of financial compensation, and this limits society’s and a victim’s interests to damages that can be quantified or it leads to a procrustean quantification of non-material damages. A broader definition of restitution would include financial compensation where necessary and allow the victim to participate in the appropriate processes to deal with psychological harm. The legal system should assist a victim to resolve any psychological harm and the plea bargaining process can provide a useful setting to aid the resolution of the victim’s psychological trauma.
For example, although it is sometimes claimed that allowing a victim to retaliate or take revenge against an offender in a formal setting aids resolution by providing the victim with a cathartic experience, the more credible claim appears to be that which argues that a victim’s desire for revenge only suppresses a resolution of his psychological trauma and that it is forgiveness that is required.
“Forgiveness is the exact opposite of vengeance, which acts in the form of reacting against an original trespassing, whereby far from putting an end to the consequences of the first misdeed, everybody remains bound to the process. In contrast to revenge, forgiving is the only reaction which does not merely react but acts anew and unexpectedly, unconditioned by the act which provoked it and therefore freeing from its consequences both the one who forgives and the one who is forgiven.” (The Retributive Theory of Just Desserts and Victim Participation in Plea Bargaining. David A. Starkweather (1992) Indiana University School of Law).
Forgiveness rather than vengeance, then, allows a victim to place the criminal experience behind him or her and restores the relationship between the victim, the offender and the natural order of society, and plea bargaining can aid this process. However, since most legal systems give priority to obtaining a conviction regardless of a victim’s psychological harm, the current plea bargaining process further alienates the victim, who becomes even more helpless and out of control of her/his life.
“Therefore, one of the biggest fictions in the plea bargaining process is the practice of allowing a defendant to plead guilty while at the same time maintaining his or her innocence. This practice undermines the retributive theory of punishment” (Ibid) and if anything, weakens the general humanizing project.
