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ClassNotesJan23 3 - 24 Jan 2008 - Main.AndrewGradman
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-- CarinaWallance - 23 Jan 2008 | | | Maybe the reason we don’t answer Holmes’s questions is that we don’t ask them | |
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- [caveat
- written late, not so organized.] "Does the criminal law do more good than harm?" is, in one way, a straw-man question. YES, I agree that we are doing more harm to the people we incapacitate than we prevent to potential victims.
However, over-incarceration only indicates a hysteric willingness to punish (relatively) victimless crimes -- i.e. utilitarianism with the thumb on the scale of white-collar comfort. It CANNOT logically tell us that we have underutilized softer options with better utilitarian outcomes.
The criminal law is (by definition?) the *last and most drastic of a series of processes designed to effect the goals of a whole swath of crime-related law: to protect potential victims and perpetrators. This complex includes elementary schools, churches, special-ed programs, unemployment insurance, sex-ed classes, Sesame Street, civil courts as fora for disputes, and criminal sanctions. In a legal system seen functionally, all these have criminal implications. (I guess they're also all Criminal Law, since Sesame Street is on PBS.)
Could we better distribute our harms among this system? We SHOULD shift harms dealt with ex-post by the criminal code into the preventive, social code. We have made huge advances in psychology and education.
But that's not an available answer when you ask "does the criminal law do more harm than good." The criminal law does LOTS of harm, because it's the last tool we have. We reserve incarceration for cases that by definition were least responsive to the rest of the system. Again I'm tired so, if this looks like a logical hairsplit, my main point is this: I call it a "straw man" question because, yeah, the criminal law is SUPPOSED to look shitty, it reflects our (alleged) inability to prevent crime by any other valve in the system. -- AndrewGradman - 24 Jan 2008
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- "Does the criminal law do more good than harm?" is a straw-man question. YES, I agree that we do more harm to the people we incapacitate than we prevent to their potential victims.
However, over-incarceration only indicates a hysteric willingness to punish (relatively) victimless crimes -- i.e. utilitarianism with the thumb on the scale of white-collar comfort. It CANNOT logically tell us that we have underutilized softer options with better utilitarian outcomes.
The criminal law does LOTS of harm, because it's the last tool we have. We reserve incarceration for cases that were least responsive to the rest of the system. It is the last and most drastic of a series of processes designed to effect the goals (esp. utilitarianism) of a whole swath of crime-related law. This complex includes elementary schools, churches, special-ed programs, unemployment insurance, sex-ed classes, Sesame Street, civil courts as fora for disputes, and criminal sanctions. In a legal system seen functionally, all these have criminal implications. (I guess they're also all Criminal Law, since Sesame Street is on PBS.)
"Could we better distribute potential perpetrators among this system?" Perhaps we SHOULD shift harms dealt with ex-post by the criminal code into the preventive, social code. We have made huge advances in psychology and education.
But it may happen that the optimum distribution of cases within this complex does not optimize each individual system. That's Cohen's fallacy of distribution. The criminal justice system is SUPPOSED to look shitty, because it catches the failures from every other system in the complex. -- AndrewGradman - 24 Jan 2008
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‘The man of the future is the man of statistics and economics’ – Holmes |
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