The Rights of the Guilty

April 24th, 2023 by dayat Leave a reply »

When philosophers and social critics speak of justice, there is always a great emphasis spoken about protecting the public by imprisoning those who pose a harm to the public. Then, with observations upon the mechanics of society, these philosophers sought out not only to defend the public, but to defend those accused by the public. To simply imprison a man or woman on a crime was not enough. Individuals who have been accused of crimes must be allowed to face their accusers. Before anyone is imprisoned, they must be convicted by a jury of peers, based on evidence. Every person is innocent until proven guilty, and the idea of “guilt until proven innocent” is a cruel, foolish idea that must be disbanded altogether. These basic premises have been created to defend those who are accused, the public, the society, and, in general, those who are innocent and deserving of protection. All so often, there is a defense of the rights of the innocent, whether it is the public or the unproven accused. What, however, often seems lacking from these theories of justice are the rights of the guilty.

I have heard so many stories of people who allow their darkest memories to overtake their compassions. I have heard confessions of men and women who allowed their passions to become sick and twisted before they became humane and kind. “Those men who are guilty of rape,” I have heard, “Should be tortured. They should have their testicles removed and they should be murdered, and then brought back to life to be killed again.” I have heard such cruel stories of torture, brutality, and inhumanity that should be, or was, given to the guilty. Passionate mothers speaking about the potential brutalities that should be given to pedophiles. Impassionate conservatives speaking about the long and violent prison sentences that should be given to drug dealers and users. When a person has their son, daughter, spouse, lover, mother, or father murdered, they sometimes make a plea that the guilty should be tortured to death — while other times, their passion is expressed in a beautiful manner, and they make plea of society to be just, generous, and fair. When I speak of the rights of the guilty, I am not talking about those wrongly convicted of guilt, or those potentially convicted on unfair grounds. I am speaking of those who have, by all our understanding and reasoning, committed the crimes that they did — the truly guilty. It is within this essay that I shall make an attempt to defend the rights of those who have broken our laws.

A Defense of the Guilty

When I make a defense of the guilty, on what grounds can I make it? When we begin to think about those who fill up the category of guilty, such as murderers, rapists, thieves, and other assorted lawbreakers, we immediately think about terminating their rights to protect society. The right to liberty, for example, to walk around and do as you will, is immediately stricken from those who are convicted of murder or rape. Those very basic rights that are granted to everyone, even the right to vote, are restricted by those who have committed harsh enough crimes. Amidst all these claims that the public must be protected from the criminal element, there are shouts for vengeance, for “justice,” for punishment, even for torture and execution. So, why would I, or anyone for that matter, defend the guilty?

To answer this question, allow me to create a hypothetical scenario. Imagine that someone is convicted of a misdemeanor, or some small petty crime, whatever it may be. Perhaps it was something as simple as running a run light, or not stopping at a stop sign. Perhaps it was something a bit more complicated, but not more criminal, such as drunk in public, or trespassing, or jaywalking. Perhaps it wasn’t just the crime alone that needs to be taken into consideration for this hypothetical scenario. Just maybe the convicted criminal in this case was unaware of the laws. Or, perhaps, the laws were created as a restrictive force, arguing that drunkenness or jaywalking are not in themselves unjust, but could possibly lead to unjust results, such as violence or physical harm. And, in violating these laws, our criminal did not cause violence (because he was drunk) or did not cause physical harm (because he was jaywalking), so he kept in the spirit of the laws. Taking this scenario one degree further, perhaps this convict is a productive member of society, who generously gives some of his payroll to non-profit organizations, and is active in Democracy. And, finally, perhaps this convict had a legitimate reason for breaking the law. Perhaps he was drunk in public because he was drunk at a friend’s house, but was then thrown out into the street. Perhaps he was jaywalking to avoid a gang of kids that seemed intimidating. With all these things considered, we have my hypothetical scenario.

Would we be just and humane, if we were to strip this convict of all rights? If we subjected this man to torture, to endless time in prison, to execution, would we be just? Certainly not. When we are examining this one case of this convict, I imagine no reasonable person would want to visit much of any punishment to this convict. In fact, no reasonable person would say that this person — admittedly guilty — should be denied rights. While this person did commit a crime, why should we deny that he has rights? Some people may continue with their diatribe, “Once guilty, a person has no rights! Once a person has committed a crime, they have no rights!” But, the more we consider this scenario I brought up, the more I think people will be convinced that being guilty alone is not enough to strip a person of all rights.

Now, let me take the previous scenario and slowly strip away different aspects. Perhaps the person who committed jaywalking or drunk in public is not a productive member of society. Perhaps they do not contribute to non-profit organizations or are productive members of society, or had a legitimate reason to commit the crimes. Perhaps it was a restrictive law that, violated by the criminal, did in fact lead to violence and physical harm. Then, let’s change a few other things. Maybe it wasn’t something as simple or harmless as jaywalking or trespassing or public drunkenness. Perhaps it was something a bit more serious, such as aggravated assault, or grand theft auto, or breaking and entering. Maybe burglary was involved. Let’s upgrade this scenario to even more devastating crimes. Perhaps it really was rape, perhaps it really was murder. In the initial scenario, an honest, hardworking person committed a crime that harmed nobody, while holding a very legitimate excuse for it. In the final scenario, after all the alterations had been made, a criminal had committed a crime that did in fact harm others without holding any legitimate excuse at all.

In the first scenario, of a man who has committed the crime of perhaps simple jaywalking, it seems that everyone would be in agreement that he should not be stripped of his rights — at least, certainly not all of them. We should not simply offer him up to the butcher’s blade or to the stake that we might burn him. Certainly not. That would be the very definition of cruelty and inhumanity. That is not to say that such simple crimes have not met such brutish punishments. In other times and other nations, simple crimes have met with such inhumane sentencing. When we look back to these accounts, of such simple people inflicting such horrendous pain, for a moment, we are convinced that civilization has brought more misery than it has alleviated. Poets in these sad times would count stars, hoping to find some sort of god that would promise them a peaceful, happy end to what has been a struggle through life. Some of them would found a religion in mortal death, treating the wispful moments as poetry dedicated to a better future. And, fortunately, my friends, we have reached a better era.

When we look at the second scenario, of a man who has committed murder or rape, we see that the same attitude is not given to them as the man who committed the simple crime of jaywalking. Attitudes vary greatly. The man who committed the simple crime that harmed no one: nobody believes that he should be stripped of all of his rights. But, the man who committed the terrible crime of rape or murder, there is a great amount of people who are ready to inflict insurmountable suffering, torture, and miseryon to these convicts if the law permitted it. The curse of the death penalty is still existent in this part of the world. So, when we are comparing these two lawbreakers, what is the point I am trying to demonstrate? To that, I shall say in the next section…

The Rights of the Guilty

Before discussing the question of the rights of a convicted rapist or a convicted murderer, let us discuss the questions of the rights of a petty criminal. Let us consider the rights of a person who committed a simple crime, such as jaywalking, and let us use the above illustrated example of this criminal — who is only a “criminal” by definition of a person who has broken the law. I imagine that there is a consensus that this man should not be stripped of his rights. He certainly does have some rights that must be considered and accepted. For example, even though he is convicted of breaking the law, in America he still has the right to freedom of speech (first amendment), he still has the right to life, liberty, and property, and none shall be taken from him without due process of law (fifth amendment), the right to a sentence that doesn’t involve cruel or unusual punishment (second amendment), among others that can be found in the bill of rights. But, when giving this guilty man rights (emphasis on guilty, because this is the point of question in this essay), it is obvious that he is deserving of these rights. However, as a criminal, it is clear that certain rights will be taken from this manner, at least restricted.

For example, if this man committed a simple crime such as jaywalking, and the state feels impelled that he ought to be held accountable for his crime, perhaps they will ask that he pay a small fee or spend one or two days in jail. He still retains his right to vote, his right to freedom of speech, his right to be secure in his own possessions, life, and liberty. There is a restriction, though. If he pays the fee, that restriction will be interpreted as a restriction of property. If he spends the one or two days in jail, that restriction will be interpreted as a restriction of liberty. Once he has paid for the crime in which he has committed, then he shall be allowed to pursue the rest of his life as he sees fit, and the state (or the public) shall have nothing to do with him again until his mischeviousness acts up again. Perhaps his crime was slightly more extreme and actually harmful to society. Perhaps the crime was petty theft, shoplifting a $3 item. Or perhaps it was criminal property damage, a youth irked on by his mates to throw a rock through a window. In this case, a similar punishment will be invoked. The person convicted of the crime will be allowed the choice of paying a fine or spending time in jail. The essential idea behind both of these is the protection of society, that the criminal learns by his punishment to never commit such acts again. Optimistically, the law acts as a re-education program. Unfortunately, it fails miserably in practice.

To simply put it… we are to treat this guilty man as any citizen of the state, but as one guilty of this one crime. What are the restrictions put on a person who is guilty? They ought to fit the crime. However, these are simply restrictions on normal citizenship. The idea that simply being guilty means a complete revocation of all rights must be thrown out entirely. If an injustice is met upon the guilty, it is equally unjust as an injustice that is met upon the innocent. If a man is guilty of jaywalking or petty theft, pays for his crime, and then is stabbed to death, it is just as much a crime as a man who is not guilty being stabbed to death. Both are citizens of a Democracy. Perhaps being stabbed to death is too harsh on an example. If a man guilty of jaywalking or petty theft pays for his crime, and then the judge or the police or someone else in the justice system decides to steal their property, it is equally unjust as the police stealing the property of an innocent man.

The very essential ethic that I am trying to demonstrate here is that all people are deserving of rights, and guilty alone is not enough to strip a man of all of his rights, any more than race or class or gender (or species, for that matter). If a police officer steals from the innocent, the innocent should have a method of making greviance (i.e. our system has rejected this, and if there is one guilty in our nation, it is the government). If a police officer steals from the guilty, they should equally have a method of making a greviance. A person guilty of commiting some crime or another should not be seperated by the law as one who is guilty. He should not be treated differently, except accordingly to his crime. Once the guilty has paid for their crime, they must, they absolutely have to, be treated equally as those who have been innocent all along.

All of this, I imagine, seems to be hardly controversial, and I imagine that few people will disagree with me thusfar. However, let us consider someone who has committed a much more grevious crime. A criminal who has murdered or raped — what regard ought we hold for this person? I contend that we should hold the same attitude as the person who has committed jaywalking or petty theft: so long as he pays for his crimes, he should be held (legally) on an equal level with those who have committed public drunkenness and paid for their crimes. What is the point I am trying to demonstrate here? That a man guilty of rape or murder, so long as he pays for his crimes, should not be treated without caprice. If a murderer in prison is raped by a fellow inmate, while the guards did nothing, then it is equally unjust as an innocent person being raped by a fellow citizen while police did nothing. A murderer is not beyond the pale of consideration simply because he is a murderer. If he is paying for his crimes, why should he be subjected to the brutality of others? He should, in fact, be allowed to pay for his crimes without suffering the cruelty given to him by others. The attitude exists that, “But that man is a murderer. If he has done that, he simply has no rights.” This attitude must be utterly and irrevocably destroyed. A murdered who has paid for his crimes must have the rights of any other citizen of the Democracy, just as a petty thief who has paid for his crimes must have the same rights as any other citizen of the democracy. If a guard were to attack and beat a convicted murderer in prison, it is just as much a cruelty as a guard attacking and beating a convicted jaywalker, or a police officer attacking and beating a peaceful protestor. The element of brutality in all of these examples comes from one distinct source: the idea that individuals who have committed no crime, or have paid for crimes they have committed, have no rights — and it is this idea that must be entirely discredited if civilization is to make progress.

An Efficient Prison System

Now that I have demonstrated the rights of the guilty, there is the question of the prison system. Before continuing in this section, I think that there must be some statements that are made on our current prison system. For the most part, our prison system exists for the sole sake of imprisoning individuals whose crimes were preventable. All property theft crimes, for example, are the cause of poverty — which stems, undoubtedly, from the intrinsic failures of the Capitalism system. In prison, 20% were sentenced for property crimes. Then there are drug crimes, which may aptly be described as thought crimes, of which 21% were sentenced for. 49%, however, were sentenced for violent crimes. However, for a great deal of the time, violent crimes were committed with the motive of property or drugs. A mugging, for example, is considered a violent crime, though its intent is the same as the property crime. Essentially, muggings would be entirely eliminated if the Capitalist system was overthrown. I imagine that a very, very, very small part of violent crimes would exist in a system where the means of production were owned and operated by the public. So, then, what of those violent acts, of people whose rage controls them more than their reason, of men whose lust controls them more than their sense of justice? I can only hope that an efficient, intelligent educational system can give the people enough knowledge to control their urges. Whether the impulse comes from lust or from fury, whether these impulses are rooted in deep-rooted issues or primitive psychology, I can only hope that an efficient educational system will solve this problem. Compulsary schooling will have to be eliminated in its entirety. Students will have to be taught to empower themselves. They will learn the richness of history and the intrigue of science. And, they will be taught to be respectful and gentle to those around them. These teachings will not be given as orders, but will be demonstrated to children as sound, logical, and reasonable.

But, what of those individuals who, despite the progress of Socialism, would commit property crimes, even if by mere habit? What of those individuals who, despite a humane education, would still commit murder or rape? I admit. It is unlikely that Socialism and Communism would entirely wipe out property crimes — but I imagine that property crimes would be eliminated almost in their entirety. It is also unlikely that a rationalist, humanitarian education would entirely wipe out violent crimes — but I imagine that many of them would still be prevented. If society breeds a generation based on the slavery of compulsary schooling, founded on the insipid and absurd classroom tactic, and harboring the principles of oppression and cruelty, then society will be breeding a generation of murderers, rapists, and thieves. However, if society breeds a generation based on free schooling, with the idea that children should be taught how they know rather than just what we know, and proudly holding the idea that it is best to be kind, generous, and warm with your fellow creatures, man and animal alike — then, in this sort of society, I imagine rape would be very limited, and I imagine that murder would be a rarity.

It is not my intention in this piece to make a dissertation on the nature of mankind. Here I will only describe the nature of crime and punishment, as it would be most effective, and the intrinsic rights of the guilty. I will not be arguing for the purity and goodness of the soul of mankind any more than I will be arguing for the darkness and brutality of the soul of mankind. In fact, if one were to make a statement on the nature of mankind, they might as well make a statament on the nature of animal kind — for, as Charles Darwin stated, “Nevertheless the difference in mind between man and the higher animals, great as it is, certainly is one of degree and not of kind.” [The Descent of Man, by Charles Darwin, part 1, chapter 4.] Some obscure philosopher may argue that the nature of mankind is generally good, for men are breed without claws, without such powerful bodies that to end the life of another is a simple task. This is naturally the case, though, because men have been bred with a brain intelligent enough to construct spears, then swords, then guns, then missiles, then nuclear and atomic bombs. Some may argue that the compassion of mankind overwhelms any violent tendencies they have, but in every age, mankind has had the heart to use those weapons that I have previous listed. The indictment cannot be entirely placed against mankind, though. When we read our history books, perhaps for every good thing we find, there are five bad things. So, mankind would be good to evil at a ratio of 1:5. Then we read our poetry books, and this ups things for mankind in a good to evil ratio at about 2:1. We throw in the books of biology and physiology and we are no wiser, for we have only learned that mankind has the heart to love as much as he does to hate. The debate could go on endlessly. If I ever do decide to question the nature of mankind and animal kind, it will not be in this piece. I will not even go so far as to say that mankind is neutral, because capability of good and bad acts does not make one neutral entirely. The case for the debate, if I ever take it up, will surely be in another piece.

So, then, what can be said of our system of prisons? Of our current system of prisons, I will say this much: at least half of them don’t belong there, the other half were put there without being given an opportunity. What is the condition of our current systems? It is rather appalling. By understanding and comparing myth with statistic, it seems that rape is commonplace, that beatings and violence have become an inherent part of prison society. Am I the only one who sees the clear contradiction of this system? Men who have violated our laws are placed in a prison where they are taught and instructed to violate the laws again once released. The statistic of those to return to prison is ridiculously high. Of the 272,111 persons released from prisons in 15 States in 1994, an estimated 67.5% were rearrested for a felony or serious misdemeanor within 3 years, 46.9% were reconvicted, and 25.4% resentenced to prison for a new crime. [U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Statistics. Criminal Offender Statistics,] There is no doubt in the mind of any informed, rational person that the prison system of today is ineffective. Furthermore, a person who goes into a prison is subjected to other crimes. As I stated in the previous sections, the guilty have the rights of the innocent, except with certain restrictions. A man who is paying for his crime of murder or rape or theft should not be subjected to other punishments that have nothing to do with the crime that he has committed.

What would be an ideal prison system, then? Well, before I can answer this question, there is the question of the purpose of prison systems. If society has created prisons to inflict vengeance, then the most ideal prison system would be one outfitted with torture devices wall-to-wall, the most minimal of these torture devices reserved for individuals who committed jaywalking or drunk in public. However, if society has created prisons to protect the public, for the sole sake of defending justice and liberty, then the most effective prison system would be one that acted with this purpose, of protecting the public and re-educating the prison population.

How would these prisons be organized, then? Well, before I answer this question, there are other questions that must first be answered, no matter how elementary they may seem. Why are people sentenced to prison? The answer to this is obvious: they have demonstrated in a free society that they are a threat to those around them. What kind of people are convicts, then? They are people who, through their actions, have proven that they are unfit to live in a free society without harming those around them. What would be the most effective prison system, then? It would be a society in which civil liberties have been severely curtailed. In some respect, our politicians understand this idea. They have placed the prisoner in a cell behind bars, with the hopes that society is protected and this person is changing. By rotting for ten or twenty years, the prisoner is released to a society that is equally antipathic as some of his prison guards or fellow prisoners. This is not how mankind can be reformed. It only degrades the spirit of the prisoner, making him a much more likely returning prisoner — and the statistics back me on this. The prison systems of the United States of America are perhaps the single corporation that receive more return business than any other company. Robert Green Ingersoll in the 1800′s would come to say…

IN my judgment, no human being was ever made better, nobler, by being whipped or clubbed.

Mr. Brockway, according to his own testimony, is simply a savage. He belongs to the Dark Ages — to the Inquisition, to the torture-chamber, and he needs reforming more than any prisoner under his control. To put any man within his power is in itself a crime. Mr. Brockway is a believer in cruelty — an apostle of brutality. He beats and bruises flesh to satisfy his conscience — his sense of duty. He wields the club himself because he enjoys the agony he inflicts.

When a poor wretch, having reached the limit of endurance, submits or becomes unconscious, he is regarded as reformed. During the remainder of his term he trembles and obeys. But he is not reformed. In his heart is the flame of hatred, the desire for revenge; and he returns to society far worse than when he entered the prison.

Mr. Brockway should either be removed or locked up, and the Elmira Reformatory should be superintended by some civilized man — some man with brain enough to know, and heart enough to feel.

I do not believe that one brute, by whipping, beating and lacerating the flesh of another, can reform him. The lash will neither develop the brain nor cultivate the heart. There should be no bruising, no scarring of the body in families, in schools, in reformatories, or prisons. A civilized man does not believe in the methods of savagery. Brutality has been tried for thousands of years and through all these years it has been a failure. ["Cruelty in the Elmira Reformatory," by Robert Green Ingersoll, date unknown.]

So, then, what would be the most effective method of a prison? As I stated, it ought to be a society with severely limited civil liberties. What exactly do I mean by this? When these men were citizens and not prisoners, they were incapable of living their lives with the civil liberties afforded to them. To walk down the street without being aided by a police officer to his destination — this civil liberty cannot be granted to him, for without the police officer, he commits crime. To possess knives or other hand-held weapons — this civil right cannot be granted to him, for when he had it, he abused it. To be allowed to live his daily life without being watched by an authority — this civil right cannot be granted to him, for when he was allowed to do what he wanted without asking permission, the result was a society scarred by crime. So, then, what should these prisons be like? Just as I said earlier that a man who has committed a crime and paid for it, should be treated identically as a man who has committed no crime (legally), a prison simply should be a society with limited civil rights, and a re-education program to help reform these prisoners. How would this society look like?

First, the traditional idea of a prison as an enormous building noted for its guards, it bars, and its walls, should entirely be thrown out. Teaching men how to live under the fist of oppression is now way to teach them how to live in a free society. It is perhaps the primary reason why those who leave prison are also the ones who immediately come back. I’m not particularly fond of the idea of one building housing all prisoners. One entire dark dungeon holding every prisoner helps keep all behavior much more hidden, much more withdrawn. Whether the secret activities of prisoners will result in harm to the guards, other members of society, or each other, an eye should be watching. Ideally, the housing of these prison inmates should resemble effective tenement housing. Each prisoner should be allowed his own quarters to reside, perhaps in a building with four floors, each floor holding four quarters, that way, it would resemble a square shape. This would allow ample sunlight and fresh air for each quarter. At a certain time each day, a prisoner would be restricted to his quarter, much like a cell, at a certain time (i.e. “lockdown”). Such a time, I imagine would be around 9 or 10 at nighttime until 8 in the morning. The idea of one entire public shower seems to have allowed for too much cruelty throughout history, so each quarter must be outfitted with its personal shower. Throughout the entirety of the grounds of the prison, there will always be some guards on duty walking through. The entire complex ought to be surrounded by a very high concrete wall, with armed guards on the top. The work area for all the guards will be outside of the concrete wall, to prevent prisoners from gaining access to weaponry or anything else that could be used to escape or cause harm. The guards are to be taught that they are aiding in reforming these prisoners — that they are to act as compassionate masters, not as slaving overseers. I also imagine that such international, non-profit organizations should be allowed, at all times, to monitor the prisons.


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