When we say radical things like "Justice must be as just for the perpetrator as for the oppressed," there is...a lot of pushback to that idea. Our culture screams, no, it doesn't. Perpetrators of injustice should pay the heaviest prices that we have, and even heavier than that. The uncountable toll that injustice takes on the oppressed makes it impossible to evenly weigh justice even with the harshest punishments.
If it's not that reaction - our grand, dramatic reaction to injustice with all of the virtue signaling that we can muster - then, it's this one: we can't risk going too lightly on the perpetrator, lest he not pay at all for his offenses. We absolutely hate the so-called 'slap on the wrist' of so-called justice, and we do everything we can to make sure the penalties are harsh enough to discourage not only this person from doing it again, but to discourage everyone from doing it ever.
This is human nature. Both of these responses are deeply woven into our fragile flesh; it's just how we operate. And for somewhat good reason - justice is vital in a civilized society. Justice is what makes it possible for us to live in community with one another. Justice is that thing that balances power (or, at least, it's supposed to) so that everyone has a chance and not just those with seeming advantages. (Ideally. We all know that's not actually how it works.)
But it is these reactions that lead us to the kind of unjust 'justice' that we now practice in America, a justice that is not just for the perpetrator.
Here's what I'm talking about: the bigger the headlines, the more we try to pile the entire burden of systemic injustice onto the shoulders of the man (usually man, the way our culture works right now) who just so happened to be most recently caught. Thus, these accused bear the burden not just of their own offenses, but of an offended society.
It's the heart of the "Me Too" movement. Someone is arrested and accused of sexual assault and all of a sudden, women all across the country who have experienced sexual assault come out of the woodwork and start declaring how much this horrible individual should pay for his crimes. The outcry becomes so loud that it's impossible to imagine a verdict other than 'guilty,' and there's so much talk about the horrendousness of the crime in general that this specific offender ends up bearing the highest burden - not because of the woman he assaulted, but because of all women everywhere. That's not just. That's not justice.
Or in a time of cries for social justice, when the narrative about our police reached a fever pitch, a police officer was put on trial for the death of a man in custody who also happened to be a man 'of color.' All of a sudden, all of the offenses of American policing are under the microscope, and this man isn't standing trial just for murder; he's on trial for being a police officer at all, and he's bearing the burden of social justice for everyone everywhere, not for the man with whom he actually had interaction. That's not just. That's not justice.
That's what I'm talking about - real justice is just as just for the perpetrator as for the oppressed. When we start adding in the weight of bigger narratives and compounding upon the burden of guilt the burden of societal dysfunction, then we're not being just any more. It does absolutely nothing to hold one man accountable to a systemic injustice that has wounded thousands (or more). It makes us feel better, maybe, for a time, but it doesn't address the problem. And it's not justice - it's not justice to the oppressed, whose story and very real pain gets caught up into a story so much bigger that it's almost lost entirely, and it's not justice to the perpetrator, who we make pay for crimes he did not commit simply because he did something similar.
That's why we have technicalities - to keep these sorts of things from happening. To keep the guilty from paying a higher price than should be exacted on them. To keep ourselves from putting the entire burden of societal injustice onto the shoulders of the latest headline-maker. That's not just. It's not justice.
We can do better.
That's why we've built it into our system to do better.
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