The criminal-justice system exists to minimize the extent to which individuals perform certain acts. There are many different tools available for society to discourage disfavored behaviors, some of which involve the use of law and legal institutions. One such law-based tool is the criminal sanction. It is not the only one. There are also various forms of civil and administrative liability, as well as subsidies and other types of incentives—behavior modification mechanisms can include both carrots and sticks. Among the sticks, the criminal sanction is normally regarded as the most forceful tool available, as well as the tool most worrisome for its tendency to produce devastating collateral damage.
It is sometimes said that the criminal-justice system exists to do other things like reinforce or clarify important moral norms; build social cohesion; identify, incapacitate, and treat individuals with dangerously antisocial tendencies; right the moral balance when it has been upset; vindicate (or perhaps more ambitiously bringing healing to) victims; or simply do justice. Each such formulation has a certain amount of truth to it, but each presents considerable danger if it is viewed in isolation as THE overriding purpose of the criminal-justice system.
One important danger is this: in a liberal, democratic society, it is imperative that the equal worth of all individuals be respected, and that there be a wide scope of individual autonomy, particularly in such matters as conscience, private moral choice, lifestyle, and political dissent. (more…)