Performative justice and coercion

Thinking about coercing convicted defendants to hear their sentences

(Source)

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The court system is inherently about performance: about justice being seen to be done.

And the legal system, more generally, is inherently about coercion: about people being forced to do things they otherwise would not do.

So taking these two things together, performative justice and coercion, both of which are deeply fixed in our culture, it is difficult for many to understand why a convicted defendant cannot simply be coerced to attend a courtroom to hear the sentencing remarks of the judge.

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The many have a point: it does seem an odd gap in the practice of criminal law, a lacuna in the world of courts and coercive force.

But.

There are genuine practical problems about having this particular form of coercion.

What happens if the defendant refuses to perform their allotted role and disrupts the court? Ordering back to their cells rather defeats the point of obliging them to be present.

And how do you meaningfully punish someone for non-compliance when they already face a life sentence?

There are also important points about placing at risk those court workers who would be expected to enforce the requirement against an unwilling defendant.

Like many things in criminal justice, and in the law generally, there are not easy answers to what seem easy questions: no deft solution to those who clamour that something must be done.

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There is, however, perhaps another way of thinking about this.

And this is to focus on the sentence of the court being the actual punishment.

That sentence may include incarceration and other things.

But the sentence is the thing.

It is the sentence which provides (or is supposed to provide) the output of justice - the sanction which the court holds to be the proportionate and, well, just response to the offence that has been found to have been committed.

Anything in addition to the sentence, even things which seem must be done, is separate from the sentence.

We should be wary about adding performative elements in addition to the sentence handed down by the court - especially elements intended to show further retribution.

Of course, part of a criminal sentence often serves the purpose of retribution.

But even in the most extreme cases, the purpose of retribution has to be balanced by other elements by a court.

The further we go from the sentence being the punishment, because of a clamour for there to be even more dramatic performative elements, the less the sentence itself can be regarded as the product of the justice system.

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Perhaps attendance orders for certain convicted defendants can be built into the court process, or even be made part formally of the sentence.

After all, as said above, there is already plenty of performative and coercive elements in criminal justice system. One more will not make that much difference.

But until such orders are properly integrated into the process, the concern should be that such elements are not made substitutes and supplements for the actual sentence.

The sentence is the thing, and it should always be the thing.

And even when the scales of justice are lopsided with the weight of the most awful of crimes, they nonetheless remain scales.