Edited to ask LennStar - what is your suggestion then regarding incarceration of rapists, murderers and molesters? Should we not incarcerate them? They have already proven themselves to be a danger to society.
Oh dear, this is going to be longer ^^
What is the goal of the judicial system in a state with rule of law?
First we have to know what rule of law means (in german the word is much better: Rechtsstaat - especially as "Recht" (law) has connotations of justice).
It means that everyone is subject to the same law, in the same extent and same result. It also means, and that is imperative, that no one gets punished for things he has not done. That is where innocent until proven guilty comes from. If the average person is under scrutiny without special reason by e.g. police, we dont have a rule of law, that thing is called police state. The former GDR with the Stasi could be called such a thing. That is why the spying of the NSA on the germans is such a big deal here. (Of course, there are always people who say "I have nothign to hide, so I have nothign to fear, which always makes me headbang.)
As a result the state with rule of law (Rechtsstaat is better, did I mention it? is there a shorter phrase in english?) accepts that not all criminals get punished. Indeed, having one person punished for somthing she did not do is worse then having 100 criminals getting away with it. (btw. that is the main reason why I hold that death penatly is not compatible with rule of law, because errors happen and death penalty is unreversible)
It also means that the justice system has to use means that are proportional to the severity of the crime. You dont shoot a little kid for stealing bubble gum. You dont shoot anyone for stealing.
But we use punishment. Why? There are 3 reasons:
1. protection of the public - if you are in prison, you dont go around doing criminal things, at least in theory (for the sake of argument we will not talk about Mafia bosses directing their underlings from prison or inner-prison crimes). That aims at the criminal individual and aims to prevent repeating.
2. Deterrence. The punishment makes it too expensive to be a criminal. This aims at people who do not have done a specific crime so far. The amount of how good that works is determined by the severity of the punishment (and a public apology can be more deterrent then a prison sentence, in part most people dont know how it is in prison) and the how big the chance to get cought is. Sorry, how big the possible criminal thinks the chance is. Very important distinction.
3. Revenge. Most people would not admit it, possibly saying they want justice, but in 99% it boils down to revenge. The feeling that the criminal has got what he deserves. I dont blame a mother wanting the killer of her child dead. Thats human. But its still not justice.
Unfortunately all our societies put a certain amount of weight on 3. Perhaps sometimes in a future far, far away that will not be the case, but for our lifetime it will. Even Gandhi and Buddha had a streak of it. But that is neither justice nor good.
Lets have a look at these 3 things with the question: How good is the goal achieved?
3. Well, revenge could easily be done. (You dont even need the real criminal, as long as you sentence someone. Wrong was done once, "justice" was done once, if it hits the right person, thats a lucky coincidence. Dont take that too seriously, please, its just there to hint you at possible interpretations of justice and legal system.)
The "problem" here lies in the simple fact that everyone has rights. You should have heard it:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.
Revenge always confronts with these, and the question is: Is your right of revenge bigger then this?
In my eyes it is never.
So under rule of law point 3. is not usable as a reason for (severe) punishment.
Number 2: deterrence
Does a big sentence deter - what was it - rapists, murderers and molesters from doing their offense?
Of course, a certain amount is deterred, no question. But i think more possible criminals are deterred by their shame, morality and so forht, which can bloom in freedom, but wither in prison. What I mean is that open discussion about these topics, education and help programs for those who have problems stopping their natural urges helps more to prevent the actual crime then a big punishment.
Does giving these types of people a second change result in more crimes of the same type by these people? Yes, it does. Same applies to stealing bubble gum.
But on the other hand, how many crimes are not committed by being open about that, by helping affected possible criminals? If you hush this up, offer no help etc. a lot of people will not get the help that would have prevented the crime. That is especially true to "psychological" based crimes like rape. You have to give the would-be criminal a chance to be no criminal. If you dont do it... well, then we have one of the puzzling things of medieval times, where chopping off hands did not stop poor people from stealing. And whipping also did not make them get a job to earn money, for whatever reason, possibly the lack of jobs.
In the case of murders, most of them are not murders but manslaughter, done in the heat of the moment, and there is no deterrent effect at all for them.
btw: For deterrent you also dont need the punished to be the criminal that did the action. Psychologically a certain rate of unconnected punishment works even better. Its the same mechanism as in terror attacks and police states. You may have nothign to hide, but the important part is: Does the police know it? And can they be sure that their knowledge that you have nothing to hide is real? Hint: No, they never can be. Thats why you always have to fear something.
So, all in all, deterrence works only so lala.
Number 1: prevent crimes from the same person.
Of course, imprisoning someone (or killing him) prevents crimes from that person. But it also is a violation of his basic, unalienable rights. And, not to put too fine a point on it, prison is
expensive. Both in money and psychological stress to people connected to the imprisoned.
Best would be we can prevent repeating with as less prison as possible, right? The word used for this is reintegration.
Well, you know I mentioned it already: help programs, psychological help, other methods...
Definitely try to not use prison for everyday crimes against things and small people-directed crimes. But it can also be used for the biggest crimes. Not in all cases. For murder for example, the planned killing of a human, you need a big, bad sentence as deterrent. For manslaughter, as I wrote above, prison does not really work as deterrent for others and seldom for the individual, because the occurence is mostly one of a kind (and thats also a reason why the sentence is a lot shorter.). For everything else we put these people not in prisons but in psychological institutions.
So, I dont know if I have lost the thread in all this or not LOL, but I this is always an answer that has to be given with reasons.
what is your suggestion then regarding incarceration of rapists, murderers and molesters? Should we not incarcerate them? They have already proven themselves to be a danger to society
So, the answer is: Yes, all these people must be put in prison, if only for reason 2. If they are nuts, they must be put in the psychological care.
For those who arent, there are projections of how likely they will do a crime again. If it is likely, they must remain in prison, for reason 1.
If these say they will not, then these people have to be released after the smallest possible time in prison (which includes comparison to other criminal activities).
And yes, I know that these projection can be wrong. If they are wrong it can mean that people die.
I live in a town that is unfortunately "famous" for having "prisoners" escape from the psychological care, including sex offenders. In most cases they just visit their mum or girlfriend. Some just wanted to take a stroll. Which proves a lot of different things, especially that a human being is never fully rational and as such never fully predictable, but it does not prove that they are dangerous.
But, you see, in a Rechtsstaat, under the rule of law, you can only aim for the smallest possible sentence. If you not do that, you go in the other direction, where you put the prevention of crime as as the highest goal which, because of its inherent logic, will always (if you dont stop on that way) end in things like Stasi and Maoist correction camps or even chopping heads off for a stolen loaf of bread.