Victims’ rights have become an important part of the public discourse on criminal justice over the past three decades. How does the victims’ rights movement deploy emotions of the public such as fear, vengeance, or sympathy? Does the victims’ rights movement undermine or enhance the rationality and fairness of the criminal justice system through its appeal to emotions? Your answer should include a discussion of Stanbridge and Kenney’s article, “Emotions and the Campaign for Victims’ Rights in Canada”, and Nussbaum’s “Emotions and the Law”.
The rights of victims have been given priority in the recent past by organisations and publics that deal with the well-being of people. As the victims’ right's activists try to ensure that there is fairness, they try to incorporate a lot of emotion like sympathy, fairness, vengeance or even fear in some situations. This answer therefore seeks to find out whether such practices tend to undermine or enhance the rationality which is found in the fairness which is found in the criminal justice, the works of Stanbridge and Nussbaum’s attempts to explain that question.
The article by Karen Stanbridge states that when a study was carried in Canada, it was found out that the political as well as the justice systems’ response to the victim claims, the capacity of the groups in which the victims are determined the type of corrective measure that was put in them. It was however realized that the emotions that in most cases was linked with victimization was very critical in shaping the constitution and development during the study. The members of a certain study group are always encouraged to try and change the negative or the painful emotions which they always receive during the victimization process into positive thoughts (Norrie, 2014).
The persistent efforts which are done can always help to change or transform the criminal justice system which the people have always considered to be insensitive to their needs. It is said that very powerful emotions which are always given by the victims have in most cases led to internal disagreements among the victim advocates. The disagreements always come from a problem of framing a particular problem. The activists that always prefer more rational ways and even the politically strategic approach in most cases are not always like those who uses emotions when it comes to people’s rights. They always believe that these people lack emotions. As a result, the always view these people as those who do not care on the type of punishment that they give. Some people can be given very tough punishments simply because they do not have human feelings at heart.
Competitions have also been seen where people are trying to ensure that their emotions are known. It is always done by using media platforms. During the early ages, the goals which the victim activists had when they were publicizing the plight of the crime victims and also ensure that they had public support of the incorporation of changes in the criminal justice system meshed up with the interest of the media to boost their audience coverage. As a result, significant work was required to ensure that the victim advocacy organizations were in a position to manage the emotional dynamics which they had to face in the rendition of their jobs. It, therefore, means that the emotions had impacted to a larger extent in promoted the rule of law (Moffat, Marruto & Turnbull, 2009 p.440).
The second article is the Emotions and the Law by Nussbaum's. This article also sheds some light when it comes to the way in which the emotions affect the way in which the human rights are looked at carefully. It is written that certain emotions that are depicted by some people have legitimately important place in defining crimes and also in determining the type of punishment that a person is going to be subjected to. Some of the emotions are however said to be shameful and disgusting to their central exemplars and always have no place. Nussbaum argues that the express irrational tendencies which involve the specios notions and contamination as well as the futile and the harmful impulse which is always linked with the human nature as being immortal and embodied beings.
The emotions that are produced by people always constitute appraisals and not mere outbursts or even moods. From these works, it is seen that emotions have a positive effect in the laws of the country. However, by a small percentage, the emotions of a person can also lead to a court order being translated differently. This is the reason why some people always do not like those people who are affected by emotions. The ruling which might be given might not be the right one.
Sometimes it is argued that the interpretation of the law should be done fairly. Emotions should not be mixed with the interpretation of the law. A group of people who accuses others of lacking emotions should not blame others. It is because the law should be interpreted without subjecting emotions to it. Some people might try to fake their emotions and when they meet judges that or law enforcers that are emotional, and then the type of punishments might change. The law should be interpreted irrespective of feelings and emotions.
The rights of the victims of the crucial, the protection of the rights should be based on the conventions that were set. The human rights should be respected. I tend to think that obeying the human rights is more important than simply following what emotions say. The emotions, the reform, undermine the rationality and fairness which is experienced in the criminal justice system.
We have seen that legal theorists often are concerned with finding justifications for using the coercive power of the law to punish people who have committed a crime. The classical retributivist and consequentialist theories of punishment, though quite different, are supposedly based on reason and respect for the individual. What are the characteristics of the retributivist and consequentialist justifications for punishment? Consider these in light of Kelly Hannah-Moffat's article, Negotiated Risk: Actuarial Illusions and Discretion in Probation. In what ways, if any, do the decision-making processes described in the Hannah-Moffat piece seem to be compatible with the retributivist or consequentialist perspectives? In what ways are they incompatible?
Punishments inflict a certain level of pain or harm to an individual. The pain can range from restricting a person's freedom to movement. It is always seen in the house imprisonment or the house arrest. The harm can also be associated to the property of an individual. This type is always seen in punishments like the pecuniary punishment or even the forfeiture of property. Sometimes the harm is caused to the honour of an individual. It happens when a person is given shaming punishments. It should be known that the harm that is caused an individual is a side effect of punishment. Harm is the primary intention of punishing somebody. From this it is therefore very difficult to know whether a person who has committed a crime will know that he or she is being punished because of the mistakes that were committed and rather to inflict harm on him or her.
The retributivist theory is sometimes called the backward-looking theory. It is because this theory assumes that the conditions that are used to justify a wrong that has been done must always lie in the past. Those who support this theory believe that when a crime, for example, was committed in the past, it then justifies punishment for the person who had caused it. It is done despite the fact the punishment has effects for the future. The society, therefore, does not only have a moral right to punish the offender but also have a moral duty or obligation to punish the offender. It is because the person did something that is morally wrong. When you look at this from a moral point of view, such people ought to be punished (Stanbridge & Kenney, 2009).
These people believe that when one has been given the appropriate punishment, then it can prevent that person from committing future offences. It can sometimes even prevent offenders from committing further crimes. Apart from these, the retributivists believe that punishments can educate the general public on what should be done. It also helps to strengthen the social cohesion between the people. An argument which is always given by the retributivists is that if for example we have a hint that tomorrow the earth is going to be destroyed by an asteroid, the punishment which would follow would not to have any social benefit but to punish all those who are responsible. This theory is the most influential philosophical justification which is used to in the institutors that punish criminals in American currently.
Herbert Hart says that this theory attempts to answer three questions. These questions are what kind of behaviour can be punished? How severe can the punishment be? The last questions are that what justifies punishment given.
Consequentialism theory, on the other hand, is always referred to as the forward-looking theory. A consequentialist believes that the rule is always right at the very moment. This theory purports for the punishment of offenders at the time when the offence is committed. Using this theory the criminal practice means that moral judgment is based on the moral assessment of behaviours based on the mistakes which were done in the past but the effects which they will cause in the future is what is looked at. The most common version of this theory is the classical utilitarianism. The utilitarian’s believe that the righteousness of any action will always depend on its consequences and also that the values always in the utility and this means that maximum of the earthly happiness should also be given minimum suffering. This theory is always considered as an ethical theory and not as a human psychology (Lupton, 1999: 12).
When the two theories are carefully analyzed, it is seen that the way in which decisions concerning the theories are made is a little bit different. The decision-making process which is given in the Hannah-Moffat piece is not compatible with this piece. It is because the different arguments which are put forth by the two theories differ. The retributivist and the consequentialist's theory differ in the way in which they propose judgement should be done to an individual. A critical analysis proves that the consequentialists' theory always looks at what will happen in the future before coming up with a punishment. The retributivists, on the other hand, always give their punishments provided a mistake had been done. They believe that provided mistake has been committed. Then such people deserve punishment. It is why this rule was referred to as the backward rule. These are the major differences which are observed in the way the two theories operate.
Works Cited
Lupton, D. Risk and sociocultural theory: New directions and perspectives. Cambridge: Cambridge University Press, 1999. Print.
Moffat, K. H., P. Marruto, and S. Turnbull. "Negotiated Risk: Acturial Illusion and Discretion in Probation." Journal of Law and Society 24.3 (2009): 391-491. Web. <DOI:10.1353/jls.0.0092>.
Norrie, A. W. Crime, reason and history: A critical introduction to criminal law. N.p., 2014. Print.
Stanbridge, K., and J. S. Kenney. "Emotions and the Campaign for Victims? Rights in Canada." Canadian Journal of Criminology and Criminal Justice 45 (2009): 473-509. Web. <10.3138/cjccj.51.4.473>.
