By Carl Greaux
The concept of retributive justice is one of balance. Here in St. Kitts-Nevis we believe that the criminal must suffer pain or loss proportional to what the victim was forced to suffer. In an extreme form, this retribution takes the form of lex talionis, a vengeance-oriented justice concerned with equal retaliation (“an eye for an eye; a tooth for a tooth”). A milder form is lex salica, which allows compensation (the harm can be repaired by payment or atonement). A punishment equal to harm is sometimes hard to determine.
A life for a life might be easy measure but very seldom is it required for retribution, even in those systems such as ours that use capital punishment. Looking at other types of victimizations causes me to ask these questions: “How does one determine the amount of physical or mental pain suffered by the victim, or financial loss that involves lost income or future loss? And, if the offender cannot pay back financial losses, how does one equate imprisonment with fines or restitution?”
Historically, in St. Kitts-Nevis, corporal and capital punishments were used for both crimes against property and violent crimes. With the development of the penitentiary system in the early 1800s, in fact in 1840 when Her Majesty’s Prison was built in Basseterre, punishment became equated with terms of imprisonment rather than amounts of physical pain. Thus, the greater or easier way of measuring out prison sentences probably contributed to its success and rapid acceptance. One can sentence an offender to one, two or five years, depending on the seriousness of the crime.
I think that imprisonment was not only considered more humane than corporal punishment, but it was also incapacitating, allowing the offender to reflect on his crime and repent. Further, it did not elicit sympathy for the offenders’ populace. On the other hand, a term of imprisonment is much harder to equate to a particular crime. While one can intuitively understand the natural balance of a life for a life, EC$100 for EC$100, or even a beating for an assault, it is much harder to argue that a burglary of Ec$1000 is equal to a year in prison or an assault is equal to a term of two years. A year in prison is hard to define. Research on prison adjustment indicates that a year means different things to different people. According to Toch (1977), “For some, it may be no more than mildly inconvenient for other; it may lead to suicide or mental illness.”
In addition to retribution, imprisonment was tied to reform the criminal offender. It is important to note that reform or rehabilitation may be a laudable goal, but it has no place in a retributive scheme of justice. Having conducted a study on retribution here in the Federation, which indicated that retributive punishment is based on balancing the victim’s harm with the offender’s pain or suffering; treatment involves no such balance; therefore, there is no retributive rationale for its existence.
Retributive justice is not a simple equation since other factors are taken into account in addition to the seriousness of the crimes. For example, mens rea (intent) has long been considered a necessary element in determining culpability. Those who are incapable of rational thought (the insane and the young) are said to be incapable of committing wrong morally or legally. Therefore, to punish them would be an injustice under a retributive framework. Other situations might prove to involve partial responsibility; for example, the presence of compulsion, coercion, or irresistible impulse. In these cases, most people feel justice is not compromised by a lesser amount of punishment, even though the harm to the victim is obviously the same as if the offender had acted deliberately and intentionally. In this sense, we see that the amount of punishment is not solely measured by the amount of harm to the victim but involves characteristics of the offender as well.
In earlier justice systems, the status of the victim was important in determining the level of harm and thus the punishment. Nobles were more important than freeman, who were more important than slaves, and men were more important than women. Punishment for offenders was weighted according to these designations of the worth of the victims.
Although we have no formal system for weighting punishment in this way and have rejected the worth of the victim as a rationale for punishment, many feel that our justice system still follows this practice. People argue that harsher sentence are given when the victim is white than when the victim is black, and when the victim is rich than the when the victim is poor. In a similar manner, many argue that the justice system discriminates unfairly and unjustly against characteristics of the offender. Many believe that offenders receive harsher sentences because of their race, background, or income.
Whether or not these charges are true, it is important to recognize that earlier systems of justice approved of and rationalized these discriminations as perfectly fair and just. It is safe to say that our system of justice in St. Kitts-Nevis has rejected these discriminations even while holding on to others; specifically, intent partial responsibility.
Conclusively, it is difficult, if not impossible, for everyone to agree upon a fair and equitable measurement of punishment when one allows for exceptions, mediating factors and partial responsibility. That is why there is so little agreement on what is fair punishment. Even when two defendants are involved in a single crime, our system of justice can support different punishments under a retributive rationale.
