Nicolás Maduro and his wife, Cilia Flores, have been forcibly taken from Venezuela and are being moved to the United States to face criminal drug-trafficking charges. Regardless of the international-law implications of this military action, the Trump administration’s description of what awaits Maduro and Flores has also transgressed basic principles of American domestic criminal law, as well as the underlying philosophical justification for punishment.
Attorney General Pam Bondi has promised that Maduro and Flores “will soon face the full wrath of American justice on American soil in American courts.” Justice in the American system is supposed to be blind and impartial. By contrast, Bondi’s vow of wrathful punishment is profoundly illiberal, suggesting a lust for criminal vengeance.
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When federal prosecutors speak of criminal allegations, moreover, they ritualistically note that a defendant such as Maduro is innocent until proven guilty. By making a presumption of guilt and of the state’s inerrancy, the attorney general is repudiating the rule of law, which is grounded in the state’s obligation to prove its case.
For millennia, punishment was considered morally defensible purely on retributive grounds. That vengeful justification yielded during the Enlightenment, during a broader societal conversion to an age of reason. Broadly speaking, the justification for criminal punishment turned away from wrath, toward utilitarian concepts of effectiveness and social benefit. In this view, penal laws and policies were justified if they arguably benefited the majority of the population. Punishment became a social good rather than a basis for personal retribution.
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As a logical result, instead of vengeance, criminal-law theorists focused on the practical benefits: The deterrence rationale holds that punishment benefits society by discouraging both the individual offender and others in society from committing future crimes. Rehabilitation helps the individual and society alike by reforming the offender and allowing him or her to reintegrate into the communal order. And incapacitation, in turn, focuses on the social benefit of protecting society by removing a dangerous criminal from the community. All of these arguments justifying criminal punishment focus on the “social utility” of the act, rather than its retributive nature.
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