Introduction
The following is an essay on the criminal justice based on the case of Lieutenant Lotem,
a case that has presented a moral and an ethical dilemma on the issue of administrative
justice. Lieutenant Lotem was a soldier in the Israeli army who was to serve as a prison
guard of Palestinians who had been arrested in ongoing arrests on Palestinian militias
after Palestinian suicide bombers bombed Israeli killing over three hundred people.
Lieutenant Lotem found it hard to imprison the innocent Palestinians detained without
trials by the Israeli authorities. Due to his refusal and disobedience to authorities to
serve, he got a sentence of twenty-nine days in prison (Greenberg, 6). This case rose
heightened discourse on the role of criminal and administrative justice. The case poses
a dilemma on what to follow: Is it the conscience or is it the set rules and procedures
even if they are morally wrong. This essay explores this case from two perspectives; the
first perspective is that of Immanuel Kant while the second perspective is that of Jeremy
Bentham.
Immanuel Kant’s perspective
As one of the founders and arguably the most prominent philosophical defender of
retributive justice, Immanuel Kant will certainly have an opinion on the case of
Lieutenant Lotem. The retributive justice looks at the past. This means that the system
advocates for punishments of offences committed in the past. It advocates that the
criminal be guilty before the administration of the punishment. In the case of lieutenant
Lotem the detainees were more of political prisoners who were suspects and they were
supposed to be brought to court for trials. However, the suspects were detained for long
periods without trial. This punishment is therefore deemed as inappropriate as it
punishes suspects who are not proven guilty (Guyer, 56).
Retributive justice advocates that punishments to have a backing of facts such as who
committed the crime and the harm or damage that the crime caused. The punishment
must be proportionate to the amount or effect of crime committed. In this case, the
crime committed is that of suicide murder, those who committed the crime died and
therefore those detained are not the one who had committed the crime. Punishing the
detainees was wrong. When viewed from the perspective of Kant the detentions
violated human rights and were illegal (Herman, 32).
The retributive justice calls for the punishment and a severe punishment on the person
who has committed crime irrespective of who they are in the society. It calls for
punishment without looking or considering the mitigating factors that led to the
commitment of that crime. This means that this perspective ignores that this is a time of
war and there are enemies whose aim was to inflict harm on the State of Israel. It also
ignores the fact that if the suspects were let loose they were likely to cause more harm
to the state than when they were detained. It also ignores the fact that already there
were victims of the bombings and they deserved justice and pain inflicted on the
Palestinians for the agony they had caused (Guyer, 48).
Jeremy Bentham perspective
Bentham is one of the proponents of deterrence forms of punishment. This is where the
punishment is administered not because a crime is committed but as a prevention
mechanism to prevent occurrence of such criminal activities. The perspective of
deterrence does not look into the immediate punishment or pain given to the offender
but the consequence of the pain for future occurrences. When the case of Lieutenant
Lotem is viewed from this perspective, the actions of Israeli government may be morally
right, as the intention of the arrests is to deter further occurrences of similar suicide
bombings. The aim of the arrests is to get intelligence information from the detainees on
what they know about the bombing and the terrorists. The eventual arrest and
imprisonment of Lotem is also a deterrent mechanism to prevent other military officers
from engaging in acts of disobedience when summoned to duty by their seniors. Failure
to punish Lotem may have led other soldiers in such acts of rebellion (Bentham, 44).
The deterrence punishment mechanism also looks into the mitigating factors that led to
the act of crime. Bentham indicates it is unnecessary to punish the criminal without
dealing with the cause or the mitigating factor of the crime. Is the criminal a thug? In
case of murder, was it intentional? Alternatively, it can be manslaughter, or a crime of
passion. Looking into the mitigating factors makes it easy to make a moral decision and
an effective punishment. In the case of Lotem one has to look into the mitigating factors
which led to the arrests of the Palestinian youth. The fist factor is that both nations the
Israeli and the Palestinian nations were in a state of war and Palestinians were deemed
enemies of Israelis. It was therefore appropriate to arrest enemy groups and punish
them accordingly. The other factor is that taking the criminals to the country would lead
to disclosure of vital intelligence information putting the country at a risk of further
terrorist attacks (Herman, 46).
The deterrent perspective also views the punishment as a means to deter others by
inflicting fear on others who may be planning to engage in a similar criminal act. In the
case of Lotem, the purpose of the arrests on Palestinian was to inflict fear on would be
suicide bombers against committing such a crime again. However, on the other side,
the arrests on innocent individuals may lead to increased resentment of the Israeli
nation and therefore make the punishments ineffective (Souryal, 73).
This view however ignores the basic human rights of human being that they are entitled
to freedom unless otherwise in a situation where they are suspected of a crime and the
freedom should be denied for the shortest time possible unless they are proven guilty
of crime. This perspective ignores the basic human rights and advocates for restrictions
and disrespect of human rights in the name of deterrence. The Israeli government was
certainly involved in human right violation by punishing and detaining individuals who
were not guilty. It also raises a further complication as per whether a crime or an action
is a crime depending on the person who does the criminal act. As per Lotem’s
arguments when the Israelis were in Russia, they were arbitrary arrested and jailed for
no reason, and they highly protested against this, why is it then they it is right when they
are the one who are arbitrary arresting and jailing other innocent individuals?
Lotem case, morality, and ethics
This case of Lotem presents a dilemma as per what is ethical and what is moral. Both
Bentham and Kant would have opposing view on whether Lotem’s actions were ethical
or moral. To disobey his seniors because what they were doing was not ethical
according to him. Kant would certainly support Lotem actions, as the punishments
according to Kant’s retributive justice were inappropriate, as they did not punish the
actual person who was involved in the crime. Bentham on the other hand would term
the lieutenant actions as wrong or as unethical because the mitigating factors behind his
seniors’ orders demand for a deterrence course of action to prevent such cases of crime
where suicide bombers would prey on innocent civilians. For Bentham it would be in
order to punish Palestinians innocent civilians to inflict similar pain inflicted to the
innocent Israeli civilians (Sheleff, 32).
Conclusion
The two opposing views present a dilemma as per the mechanism of justice to use
when applying ethics and morality in cases of criminal justice. The arguments offered by
both parties are valid and the challenge for every criminal justice practitioner is to strike
a balance between the two opposing sides. The middle ground would be to apply
deterrent measures on the actual criminal or the persons who have been proven guilty
or confessed involvement in activities of crime. It is morally and ethically wrong to
punish innocent individuals in the name of deterrence. It is inappropriate to use
deterrence measures to punish incent people. Deterrence should apply when dealing
with actual and criminals. However, it is necessary to look into the mitigating factors
when applying justice to ensure that the measure taken in deterrence are proportionate
to the crime committed. The deterrence measure are appropriate for civil and economic
crime such as seizure of property in case of economic crime or taking consideration of
the social economic status of the individual when appropriating fines on the individual
who is guilty. In criminal cases, application of retributive justice to the actual individuals
who committed the crime is the best way of giving justice. However, an aspect of
deterrence need to apply when using the retributive justice by examining and
considering the mitigating factors that led to the criminal act.
Work cited
Bentham, J. (1970). An introduction to the principles of morals and justice. Oxford:
Clarendon Press
Guyer, Paul. Kant and the Claims of Justice. Harvard University Press, Cambridge
University Press, 1997.
Greenberg, Joel. Lonely Israeli Fights Israel's Treatment of Arabs. New York Times
August 25, 1997, retrieved from http://www.nytimes.com/1997/08/25/world/lonely-israeli-
fights-israel-s-treatment-of-arabs.html?pagewanted=all&src=pm
Herman, Barbara. The Practice of Moral Judgement. Harvard University Press, 1993.
Sheleff, Lindsay. (1981). The relevance of classical criminology today. The mad, the
bad and the different: essays in honor of Simon Dinitz. Lexington: Massachusetts:
Lexington Books
Souryal, Sam. Ethics in Criminal justice; In Search of the Truth: the theory and practice
of Criminal Justice Ethics, Anderson Publishers, 1992.
