Question 5 Response 1 – Elgin Hushbeck – Reforming the Penal System

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Question 5
Elgin Hushbeck Reply to Question 5
Joel Watts Reply to Question 5
Joel Watts Question 5 Response 1
Second Reply Set (Both Joel Watts and Elgin Hushbeck)
Question: You write of finding “the least bad one.” Why are you so pessimistic that the situation cannot be righted? Even if Eden started off perfected but was later corrupted, doesn’t mean God found the “least bad one” in answers to fix the problem. We just need to find the way back to restore the intended philosophy. Is it your view that Government is simply a “necessary evil?” If so, how do you support that both from Scripture and from the American political tradition?
I say the least bad one, because all systems will have their flaws and weaknesses. In a perfect system the guilty would always be convicted and the innocent acquitted. I know of no such system.  A system that focuses on making sure the guilty are always convicted will also convict the innocent at times. A system the focuses on making sure the innocent are always acquitted, will also at times acquit the guilty.  Both have serious problems.  While it is common to hold that it is better that 10 guilty people be acquitted than one innocent person be convicted, I have never been very comfortable with that, because it leaves 10 criminals free and emboldened to commit more crime.   There is a Jewish saying, Mercy to the guilty is cruelty to the innocent.
As I write about in my book, one of the key problems with the current system it that it is almost completely cut off from the notion of justice. For far too many in the system, it is just about winning and losing.  The goal of the prosecutor is have a very high conviction rate, the goal of the defense attorney is get their client off.  I do believe the current system is tilted for the defense to the point that we have seen defense lawyers even lie in court and have nothing happen to them, as that is just “doing their job.”  But still, the result is that miscarriages of justice occur on both sides.
In some respects this comes down to a question I ask in my critical thinking classes:   Is it better to have justice, or that the courts follow the rules? There is no easy answer to this question.  Both answers have problems. Despite what I have said above about the importance of justice, I still come down on the side of following the rules, but I too want a set of rules that maximize justice.
As for my view of Government, I am not a libertarian.  I do believe that government has an important and vital role to play, but like so many good things, it has it limits.  An analogy would be food: we need it, and it can be done well or poorly, but too much of it is a problem.  Currently the Government is severely over weight and bloated.  In too many ways, it has ceased to serve us, and we must now serve it and feed it.
Forget the scandal part of the IRS for the moment, just the idea that they can take over 1000 days to respond on a filing and when they do, they request a massive amount of information and give you 30 days to reply or your file will be closed and your $800 fee forfeited, is obscene! They can take all the time they want, but you have to jump when they say jump.
Another example of extreme abuse of power would be the case of the Sackett v. EPA, which is far from being unique.   Sarah Palin was widely criticized on the left for her comment on Death Panels, and yet we have the spectacle of a congressmen pleading for the Secretary of HHS to suspend a ruling so that a girl can have a chance to live. Given all that has happened with this administration I cannot help but wonder if Sebelius would have been more receptive had the Congressman been a Democrat whose support was needed on a key piece of legislation.
So in my view government is important and vital, but should also be small with policies and laws made at the local level and at the federal only as a last resort.
Another way to understand my view is the analogy of addiction. Government at all levels and with both parties, is addicted to spending. But it is not just spending in general, but spending that benefits them, that allows them to claim that they “brought home the bacon” and thus get themselves reelected.  The problem here is that while there is a lot of responsibility, there are very few votes to be had from spending on the Justice system, and thus it has been allowed to wither.   Thus it is one of the few areas I would support a big increases in spending if done intelligently, which for government may be asking too much.
Question : What is your position on the death penalty?
I support the death penalty in at least some cases.   For example, I think it was very appropriate for the Oklahoma City Bomber.   In contrast, I think it a travesty of justice that the Norwegian mass murder will serve a maximum of 21 years for killing 77 people.  That is a little over 3 months per person.  He was 33 years old when convicted and will be 54 at most when released.  Frankly even life in prison is hard to reconcile with any concept of justice in such a case.