Non-Judicial Punishment

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Discussion

Bruce Perens:

"Non-Judicial Punishment is a key part of democracy and free-market capitalism, and highly problematical, at the same time.

In judicial punishment, a judge or jury decide upon guilt or innocence, and the scope of the punishment, working within a tremendous body of rules and processes meant (always with less than complete success) to justly and fairly mete out punishment.

Today’s topic is the less formal method known as “shunning”, and sometimes labeled with the pejorative “cancel culture”. Political officers and candidates have no right to use those two words, since public decisions based on the stated opinions and conduct of individuals and organizations are inherent in the democratic process of government they signed up for, and the constitution they swore to protect and defend.

It’s the way elections work: the electorate is supposed to decide whether to vote for a candidate, or not, based on that candidate’s stated opinions and past behavior. So, we reward the winner and “punish” the loser. We’ve all witnessed how voters are cheated by untruthful sources, but ultimately democracy rests upon a properly informed voter making choices based upon that information.

We decide where we will shop, invest, and sometimes work, based on the behavior of companies and the statements of their leaders and spokespeople. Being able to decide what business you deal with is a key part of having a free market.

However, there is also the non-judicial punishment of individuals: the penalty of shunning that is meted out by large populations of mostly-pseudonymous people on the internet. These people are expressing their 1st amendment right to free speech, often to punish someone who is well worthy of such punishment but will not be reached by any judicial means.

Consider the lack of features of the judicial process that exist in such non-judicial punishment. Obviously, the accused doesn’t get the chance to have evidence heard fairly in a court and evaluated by a jury of their peers. The last time I was empanelled on such a jury, I heard 21 days of testimony from witnesses and experts, and was well able to make a decision, which (as required, or “innocence” is automatic) was unanimous among the jurors.

Nobody works one hundredth so hard upon a non-judicial punishment, perhaps with the single exception of the vanishing breed of investigative journalists. There is no formal “jury”, no standard for guilt or innocence, no sentencing guideline and limit, no accountability among those who mete out punishment.

Most troubling is the lack of any form or end to the sentence other than indefinite shunning. When their sentence is indefinite, the shunned are never given a chance to prove that they have reformed their behavior, and to thus reach the end of their shunned status. An indefinite sentence does not admit to the possibility of reform or even the desirability of reform. Thus, what should be a learning opportunity becomes little more than revenge." (https://perens.com/2021/04/04/on-non-judicical-punishment-of-individuals/?)