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JohnSchwabFirstPaper 13 - 13 Jan 2012 - Main.IanSullivan
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| | | THINKING ABOUT THE CRIMINAL LAW
If Holmes was correct and the law is what it does, then the criminal law is a force that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that diverts massive sums of money from pressing social needs such as education, that murders men in the name of justice and that incarcerates the innocent along with the guilty. |
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JohnSchwabFirstPaper 12 - 12 Jul 2010 - Main.JohnSchwab
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< | re-write in progress | | | THINKING ABOUT THE CRIMINAL LAW
If Holmes was correct and the law is what it does, then the criminal law is a force that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that diverts massive sums of money from pressing social needs such as education, that murders men in the name of justice and that incarcerates the innocent along with the guilty. | | | Today, the law's supporters say it wasn't supposed to prevent child sexual abuse, it was only intended to give parents better information. In other words, peace of mind. In New Jersey, that peace of mind cost four million dollars annually as of 2007. Would the Jersey state legislature have passed a law if it had been presented as one that would cost millions of dollars to make parents feel their children were safer while not actually improving children's safety? Maybe, maybe not. But by not framing the question on its true terms, the legislature avoided, as we all do, actually examining what end they were wielding the criminal law to achieve.
Conclusion | |
>
> | There are no easy answers for the problems that plague our criminal justice systems. There are plenty of answers that are easy to propose, but none that are easy to implement. Before any substantive change can occur, we as a society need to face what exactly the criminal justice system is and what it really does. We need to accept that many aspects of the criminal justice system do not make us safer. We need to believe that the criminal justice is a massive waste of resources that could be better spent elsewhere. We need to understand that the real problem isn't with the men and women behind bars, it is with us. | | | | |
>
> | -- By JohnSchwab - 21 Feb 2010 | | | | |
<
< | -- By JohnSchwab - 21 Feb 2010 | >
> | NOTES:
I have really struggled with making this essay work as a whole. In every form I have tried it, I think there are some interesting ideas, but it fails to fully coalesce. I think my problem is that I'm unable to hone in on a distinct, specific subject and address that to the exclusion of all else. Perhaps a broad discussion of criminal justice is simply impossible in an abbreviated format. Or, more likely, I simply haven't yet found the right angle. I will keep looking. | | | |
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JohnSchwabFirstPaper 11 - 01 Jun 2010 - Main.JohnSchwab
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re-write in progress | |
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< | DETERRENCE & THE CRIMINAL JUSTICE SYSTEM
If Holmes was correct and the law is what it does, then the criminal law is a force imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that diverts massive sums of money from pressing social needs such as education, that murders men in the name of justice and that incarcerates the innocent along with the guilty. | >
> | THINKING ABOUT THE CRIMINAL LAW
If Holmes was correct and the law is what it does, then the criminal law is a force that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that diverts massive sums of money from pressing social needs such as education, that murders men in the name of justice and that incarcerates the innocent along with the guilty. | | | | |
<
< | There is little question our criminal justice system is in need of reform. Many Americans, however, would balk at the idea that what we need to do is decrease the degree of punishment our society metes out to those deemed criminals. | >
> | It is hard to argue that such a system is not in desperate need of reform. That reform, however, never seems to come. In part, this is because American politicians interested in looking for alternatives to incarceration are deemed "soft on crime" and punished at the polls. Despite studies that suggest that alternative methods may be more successful at preventing recidivism, the electorate clings to the belief that locking people up for greater and greater amounts of time will make society a safer place. This belief rests on the theory of deterrence. But deterrence, at least as it is conceived of in America, is another form of Felix Cohen's transcendental nonsense, in that it allows society to think positively about the criminal law, even while knowing that it does horrible things to other human beings. | | | | |
>
> | DETERRENCE IN AMERICA | | | | |
<
< | DETERRENCE ANALYSIS: COSTS AND BENEFITS
At its heart, deterrence is a balancing test. Theoretically, a society can balance the costs of a particular punishment with the benefits gained from imposing that punishment. In the United States, the most common punishment for felonies is imprisonment. However, while many of the costs of imprisonment (in terms of financial expenditures and community and individual impact) are quantifiable, it is far more difficult to evaluate the the benefits of punishment. | >
> | At its heart, deterrence is a balancing test. Theoretically, a society can balance the costs of a particular punishment with the benefits gained from imposing that punishment. In the United States, by far the most common punishment for felonies is imprisonment. However, while many of the costs of imprisonment (in terms of financial expenditures and community and individual impact) are quantifiable, it is far more difficult to evaluate the the benefits of punishment. | | |
Crime Prevention | |
<
< | The most prominently claimed benefit is that imposition of the criminal law deters both the individual felon and potential future actors from engaging in similar behavior. | >
> | Perhaps the clearest "benefit" of incarceration is retribution. While there is no question that retribution plays a large part in the American criminal justice system, many people struggle with the concept of retribution as a "benefit". For this reason, notions of retribution are often bound up with a more dubious benefit: the idea that incarceration deters both the individual felon and potential future actors from engaging in similar behavior. | | | Individual Deterrence | | | Peace of Mind | |
<
< | Punishment is the primary goal of our criminal justice system. Someone has done something bad and he ought to pay for it. Theoretically, our legislatures determine how much he has to pay based on how bad an action he undertook. However, there is one factor that rarely gets mentioned in discussions of appropriate punishment: peace of mind. Perhaps this is because we are not comfortable baldly stating that we are okay with ruining the lives of criminals (and sometimes their families) and tearing apart communities so that we can sleep better. But this is precisely what we do. | >
> | There is, however, another societal "benefit" beyond retribution and crime prevention that rarely gets mentioned in discussions of appropriate punishment: peace of mind. Perhaps this is because we are not comfortable baldly stating that we are okay with ruining the lives of criminals (and sometimes their families) and tearing apart communities so that we can sleep better. But this is precisely what we do. | | | One of the most high-profile sentencing laws in recent years is Megan's Law, which created sex offender registries with names, address and photos of people who have committed sexual assaults. Although the laws in many states extend beyond pedophiles, the idea, as it was promulgated at the time, was to make parents aware of sexual predators in their neighborhoods so that they could better protect children. The problem is, it didn't work. | | | Conclusion | |
<
< | The "justice" against which Robinson sets himself does two things: it punishes those we deem deserving and it gives us peace of mind. The people who we find deserving, the people our peace of mind requires we be protected from are overwhelmingly young, poor, male, minorities. I do not know that this necessarily reflects well on Robinson, but it certainly reflects poorly on us. | >
> | | | |
-- By JohnSchwab - 21 Feb 2010 | |
<
< | In the end, this isn't
really an essay about Robinson, or criminal defense counsel, at all.
It's an essay about the futility of criminal punishment. I think
that's better addressed directly than through Robinson, who like most
defense counsel almost believes that, but not quite. | | | | |
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JohnSchwabFirstPaper 10 - 01 Jun 2010 - Main.JohnSchwab
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re-write in progress | | | DETERRENCE ANALYSIS: COSTS AND BENEFITS | |
>
> | At its heart, deterrence is a balancing test. Theoretically, a society can balance the costs of a particular punishment with the benefits gained from imposing that punishment. In the United States, the most common punishment for felonies is imprisonment. However, while many of the costs of imprisonment (in terms of financial expenditures and community and individual impact) are quantifiable, it is far more difficult to evaluate the the benefits of punishment. | | | | |
>
> | Crime Prevention | | | | |
<
< | If the system were
better, would Robinson be worse? This seems to me to indicate
another mistake: that Robinson's work is to be judged by whether
guilty people go to jail or to the street, or by some function that
subtracts from the badness of the crime the destructiveness of the
criminal justice system and determines incarceration on the
difference. His work is to be judged by the determination and the
resourcefulness with which he protects the interest of his clients,
regardless of who they are, which is, as he says, none of our fucking
business. (This is strictly true in preindictment representation, as
I have pointed out, where the presumption of innocence means the
difference between an innocent man's undiminished credibility and
reputation and the creation of an unfettered power of personal
destruction, entirely unrelated to provable guilt, in the
prosecutor's office.)
Deterrence
A major reason for this is our belief that criminal law operates not just to punish the guilty but to deter future crime and that it works, therefore, for the overall good of society. Unfortunately, deterrence talk is another form of Felix Cohen's transcendental nonsense. It allows us to think positively about criminal law, even while knowing it does horrible things to other human beings.
That depends in part on
how deterrence is achieved. Incarceration, which has serious
destructive consequences for many parties who have committed no
crime, is a form of general deterrence entitled to particularly
little respect. | >
> | The most prominently claimed benefit is that imposition of the criminal law deters both the individual felon and potential future actors from engaging in similar behavior. | | | Individual Deterrence | | | Moreover, when we make deterrence based decisions, those decisions are not based in fact. Not only do we lack data showing that deterrence in general works, we have no idea what degree of punishment will actually deter future actors. We are making value judgments: what activities should be deterred? What penalties are necessary to create deterrence? How harshly are we willing to punish individual human beings to achieve that deterrence? But if we accept that, as an empirical matter, deterrence is not proven to work, all these judgments boil down to is how much punishment does a particular crime deserve. | |
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< | Punishment & Peace of Mind | >
> | Peace of Mind | | | Punishment is the primary goal of our criminal justice system. Someone has done something bad and he ought to pay for it. Theoretically, our legislatures determine how much he has to pay based on how bad an action he undertook. However, there is one factor that rarely gets mentioned in discussions of appropriate punishment: peace of mind. Perhaps this is because we are not comfortable baldly stating that we are okay with ruining the lives of criminals (and sometimes their families) and tearing apart communities so that we can sleep better. But this is precisely what we do. |
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JohnSchwabFirstPaper 8 - 28 May 2010 - Main.JohnSchwab
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> | re-write in progress | | | | |
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< | Lawrence Joseph's Robinson probably wouldn't want a defense. Nonetheless, I intend to provide him with one because I believe it could be helpful in understanding how we think about the criminal law as a whole. | >
> | DETERRENCE & THE CRIMINAL JUSTICE SYSTEM
If Holmes was correct and the law is what it does, then the criminal law is a force imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that diverts massive sums of money from pressing social needs such as education, that murders men in the name of justice and that incarcerates the innocent along with the guilty. | | | | |
<
< | There are millions of lawyers doing millions of jobs all over the world, but there is something about the work of the criminal defense lawyer that makes many of us say, "I could never do that." But why, exactly, do we say this? | >
> | There is little question our criminal justice system is in need of reform. Many Americans, however, would balk at the idea that what we need to do is decrease the degree of punishment our society metes out to those deemed criminals. | | | | |
<
< | Bucking the System | >
> | DETERRENCE ANALYSIS: COSTS AND BENEFITS | | | | |
<
< | On the most basic level, Robinson is standing against the criminal law and against justice and he is doing so on behalf of "bad" men. Therefore, he is a bad man himself. | | | | |
<
< | But this is obvious
illogic. He may be said to represent bad men, as an actor may be
said to represent Richard III or Iago. Perhaps there might be people
who would not want to become actors if they were to play villains
rather than heroes. But it would be a confusion to say that such a
determination resulted from wanting to be a good person rather than a
bad one. | | | | |
<
< | But if Holmes was correct and the law is what it does, then Robinson is setting himself against a system that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that murders men in the name of justice and that incarcerates the innocent along with the guilty. From this perspective, it seems like Robinson actually does good work. And yet, that's not how many of us instinctively feel. | | | If the system were
better, would Robinson be worse? This seems to me to indicate |
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JohnSchwabFirstPaper 7 - 03 Apr 2010 - Main.EbenMoglen
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| | | Bucking the System | |
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< | On the most basic level, Robinson is standing against the criminal law and against justice and he is doing so on behalf of "bad" men. Therefore, he is a bad man himself. But if Holmes was correct and the law is what it does, then Robinson is setting himself against a system that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that murders men in the name of justice and that incarcerates the innocent along with the guilty. From this perspective, it seems like Robinson actually does good work. And yet, that's not how many of us instinctively feel. | >
> | On the most basic level, Robinson is standing against the criminal law and against justice and he is doing so on behalf of "bad" men. Therefore, he is a bad man himself. | | | | |
>
> | But this is obvious
illogic. He may be said to represent bad men, as an actor may be
said to represent Richard III or Iago. Perhaps there might be people
who would not want to become actors if they were to play villains
rather than heroes. But it would be a confusion to say that such a
determination resulted from wanting to be a good person rather than a
bad one.
But if Holmes was correct and the law is what it does, then Robinson is setting himself against a system that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that murders men in the name of justice and that incarcerates the innocent along with the guilty. From this perspective, it seems like Robinson actually does good work. And yet, that's not how many of us instinctively feel.
If the system were
better, would Robinson be worse? This seems to me to indicate
another mistake: that Robinson's work is to be judged by whether
guilty people go to jail or to the street, or by some function that
subtracts from the badness of the crime the destructiveness of the
criminal justice system and determines incarceration on the
difference. His work is to be judged by the determination and the
resourcefulness with which he protects the interest of his clients,
regardless of who they are, which is, as he says, none of our fucking
business. (This is strictly true in preindictment representation, as
I have pointed out, where the presumption of innocence means the
difference between an innocent man's undiminished credibility and
reputation and the creation of an unfettered power of personal
destruction, entirely unrelated to provable guilt, in the
prosecutor's office.) | | | Deterrence
A major reason for this is our belief that criminal law operates not just to punish the guilty but to deter future crime and that it works, therefore, for the overall good of society. Unfortunately, deterrence talk is another form of Felix Cohen's transcendental nonsense. It allows us to think positively about criminal law, even while knowing it does horrible things to other human beings. | |
>
> | That depends in part on
how deterrence is achieved. Incarceration, which has serious
destructive consequences for many parties who have committed no
crime, is a form of general deterrence entitled to particularly
little respect. | | | Individual Deterrence
Individual deterrence takes two forms: first, the belief that a stern enough sentence will prevent a criminal from repeating his offense and, second, that if a criminal is locked up he will be completely "deterred" from committing a future crime. | | | -- By JohnSchwab - 21 Feb 2010 | |
<
< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, JohnSchwab | >
> | In the end, this isn't
really an essay about Robinson, or criminal defense counsel, at all.
It's an essay about the futility of criminal punishment. I think
that's better addressed directly than through Robinson, who like most
defense counsel almost believes that, but not quite. | | | | |
<
< | Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | >
> | | | | \ No newline at end of file |
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JohnSchwabFirstPaper 6 - 01 Apr 2010 - Main.JohnSchwab
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| | | Bucking the System | |
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< | On the most basic level, Robinson is standing against the criminal law and against justice and he is doing so on behalf of "bad" men. Therefore, he is a bad man himself. But if Holmes was correct and the law is what it does, then Robinson is setting himself against a system that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that murders men in the name of justice and that incarcerates the innocent along with the guilty. From this perspective, it seems like Robinson actually does good work. And yet, that's not how many of us instinctively feel. | >
> | On the most basic level, Robinson is standing against the criminal law and against justice and he is doing so on behalf of "bad" men. Therefore, he is a bad man himself. But if Holmes was correct and the law is what it does, then Robinson is setting himself against a system that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that murders men in the name of justice and that incarcerates the innocent along with the guilty. From this perspective, it seems like Robinson actually does good work. And yet, that's not how many of us instinctively feel. | | |
Deterrence | | | The first argument is easy to dispose of. Studies show that much individual crime is a reaction to an immediate, stressful situation and that the perpetrators are often under the influence of drugs or alcohol. If we were really concerned about preventing recidivism, we would focus on working with the incarcerated to change the way they react when they are faced with stressful trigger situations. We would, in other words, focus our penal system on rehabilitation. Quite obviously, we do not. | |
<
< | The problem with the second argument is that time in prison is damaging. When convicts are eventually released, they are mentally and emotionally worse off than they were at conviction. They may be even more dangerous to the community. California's three strikes law "fixes" this problem by sentencing repeat offenders to life in prison. A nice, neat solution, except that it is economically untenable and leads to things like this. | >
> | The problem with the second argument is that time in prison is damaging. When convicts are eventually released, they are mentally and emotionally worse off than they were at conviction. They may be even more dangerous to the community. California's three strikes law "fixes" this problem by sentencing repeat offenders to life in prison. A nice, neat solution, except that it is economically untenable and leads to things like this. | | | Future Actor Deterrence |
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JohnSchwabFirstPaper 5 - 26 Feb 2010 - Main.JohnSchwab
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Robinson's Defense | |
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< | Lawrence Joseph's Robinson probably wouldn't want a defense. Nonetheless, I intend to provide him with one, because I believe it could be helpful in understanding how we think about the criminal law as a whole. | >
> | Lawrence Joseph's Robinson probably wouldn't want a defense. Nonetheless, I intend to provide him with one because I believe it could be helpful in understanding how we think about the criminal law as a whole. | | | | |
<
< | There are millions of lawyers doing millions of jobs all over the world, but there is something about the work of the criminal defense lawyer that makes many of us think, "I could never do that." But why, exactly, do we say this? | >
> | There are millions of lawyers doing millions of jobs all over the world, but there is something about the work of the criminal defense lawyer that makes many of us say, "I could never do that." But why, exactly, do we say this? | | |
Bucking the System | |
<
< | On the most basic level, Robinson is standing against the criminal law and against justice and he is doing so on behalf of "bad" men. Therefore, he is a bad man himself. But if Holmes was correct and the law is what it does, then Robinson is setting himself against a system that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that murders men in the name of justice and that incarcerates the innocent along with the guilty. From this perspective, it seems like Robinson actually does good work. And yet, that's not how many of us instinctively feel. | >
> | On the most basic level, Robinson is standing against the criminal law and against justice and he is doing so on behalf of "bad" men. Therefore, he is a bad man himself. But if Holmes was correct and the law is what it does, then Robinson is setting himself against a system that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that murders men in the name of justice and that incarcerates the innocent along with the guilty. From this perspective, it seems like Robinson actually does good work. And yet, that's not how many of us instinctively feel. | | |
Deterrence | | | Individual deterrence takes two forms: first, the belief that a stern enough sentence will prevent a criminal from repeating his offense and, second, that if a criminal is locked up he will be completely "deterred" from committing a future crime. | |
<
< | The first argument is easy to dispose of. Studies show that much individual crime is a reaction to an immediate, stressful situation and that the perpetrators are often under the influence of drugs or alcohol. If we were really concerned about preventing recidivism, we would focus on working with the incarcerated to change the way they react when they are faced with stressful trigger situations. We would, in other words, focus our penal system on rehabilitation. Quite obviously, we do not. | >
> | The first argument is easy to dispose of. Studies show that much individual crime is a reaction to an immediate, stressful situation and that the perpetrators are often under the influence of drugs or alcohol. If we were really concerned about preventing recidivism, we would focus on working with the incarcerated to change the way they react when they are faced with stressful trigger situations. We would, in other words, focus our penal system on rehabilitation. Quite obviously, we do not. | | | | |
<
< | The problem with the second argument is that time in prison is damaging. When convicts are eventually released into a community, they are mentally and emotionally worse off and they are more dangerous to the community. California's three strikes law "fixes" this problem by sentencing repeat offenders to life in prison. A nice, neat solution, except that it is economically untenable and leads to things like this. | >
> | The problem with the second argument is that time in prison is damaging. When convicts are eventually released, they are mentally and emotionally worse off than they were at conviction. They may be even more dangerous to the community. California's three strikes law "fixes" this problem by sentencing repeat offenders to life in prison. A nice, neat solution, except that it is economically untenable and leads to things like this. | | | Future Actor Deterrence |
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JohnSchwabFirstPaper 4 - 26 Feb 2010 - Main.JohnSchwab
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| | | Lawrence Joseph's Robinson probably wouldn't want a defense. Nonetheless, I intend to provide him with one, because I believe it could be helpful in understanding how we think about the criminal law as a whole. | |
<
< | There are millions of lawyers doing millions of jobs all over the world, but there is something about the work of the criminal defense lawyer that makes many of us (and by "us" I mean us in law school and us, the general population) think, "Oh, I could never do that." But why, exactly, do we say this? | >
> | There are millions of lawyers doing millions of jobs all over the world, but there is something about the work of the criminal defense lawyer that makes many of us think, "I could never do that." But why, exactly, do we say this? | | |
Bucking the System | | | Deterrence | |
<
< | A major reason for this is our belief that criminal law operates not just to punish the guilty but to deter future crime and that it works, therefore, for the overall good of society. Unfortunately, deterrence talk is another form of Jerome Frank's transcendental nonsense. It allows us to think positively about criminal law, even while knowing it does horrible things to other human beings. | >
> | A major reason for this is our belief that criminal law operates not just to punish the guilty but to deter future crime and that it works, therefore, for the overall good of society. Unfortunately, deterrence talk is another form of Felix Cohen's transcendental nonsense. It allows us to think positively about criminal law, even while knowing it does horrible things to other human beings. | | | Individual Deterrence | | | Punishment is the primary goal of our criminal justice system. Someone has done something bad and he ought to pay for it. Theoretically, our legislatures determine how much he has to pay based on how bad an action he undertook. However, there is one factor that rarely gets mentioned in discussions of appropriate punishment: peace of mind. Perhaps this is because we are not comfortable baldly stating that we are okay with ruining the lives of criminals (and sometimes their families) and tearing apart communities so that we can sleep better. But this is precisely what we do. | |
<
< | One of the most high-profile | >
> | One of the most high-profile sentencing laws in recent years is Megan's Law, which created sex offender registries with names, address and photos of people who have committed sexual assaults. Although the laws in many states extend beyond pedophiles, the idea, as it was promulgated at the time, was to make parents aware of sexual predators in their neighborhoods so that they could better protect children. The problem is, it didn't work. | | | | |
>
> | Today, the law's supporters say it wasn't supposed to prevent child sexual abuse, it was only intended to give parents better information. In other words, peace of mind. In New Jersey, that peace of mind cost four million dollars annually as of 2007. Would the Jersey state legislature have passed a law if it had been presented as one that would cost millions of dollars to make parents feel their children were safer while not actually improving children's safety? Maybe, maybe not. But by not framing the question on its true terms, the legislature avoided, as we all do, actually examining what end they were wielding the criminal law to achieve. | | | Conclusion | |
>
> | The "justice" against which Robinson sets himself does two things: it punishes those we deem deserving and it gives us peace of mind. The people who we find deserving, the people our peace of mind requires we be protected from are overwhelmingly young, poor, male, minorities. I do not know that this necessarily reflects well on Robinson, but it certainly reflects poorly on us. | | |
-- By JohnSchwab - 21 Feb 2010 |
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JohnSchwabFirstPaper 3 - 25 Feb 2010 - Main.JohnSchwab
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< | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | Robinson's Defense | |
>
> | Lawrence Joseph's Robinson probably wouldn't want a defense. Nonetheless, I intend to provide him with one, because I believe it could be helpful in understanding how we think about the criminal law as a whole. | | | There are millions of lawyers doing millions of jobs all over the world, but there is something about the work of the criminal defense lawyer that makes many of us (and by "us" I mean us in law school and us, the general population) think, "Oh, I could never do that." But why, exactly, do we say this?
Bucking the System | |
>
> | On the most basic level, Robinson is standing against the criminal law and against justice and he is doing so on behalf of "bad" men. Therefore, he is a bad man himself. But if Holmes was correct and the law is what it does, then Robinson is setting himself against a system that imprisons young, poor, male minorities in enormous numbers, that takes husbands from wives and fathers from children, that robs communities of vast swathes of their young people, that murders men in the name of justice and that incarcerates the innocent along with the guilty. From this perspective, it seems like Robinson actually does good work. And yet, that's not how many of us instinctively feel.
Deterrence
A major reason for this is our belief that criminal law operates not just to punish the guilty but to deter future crime and that it works, therefore, for the overall good of society. Unfortunately, deterrence talk is another form of Jerome Frank's transcendental nonsense. It allows us to think positively about criminal law, even while knowing it does horrible things to other human beings.
Individual Deterrence | | | | |
<
< | Who Are These Criminals? | >
> | Individual deterrence takes two forms: first, the belief that a stern enough sentence will prevent a criminal from repeating his offense and, second, that if a criminal is locked up he will be completely "deterred" from committing a future crime. | | | | |
<
< | How We Judge | >
> | The first argument is easy to dispose of. Studies show that much individual crime is a reaction to an immediate, stressful situation and that the perpetrators are often under the influence of drugs or alcohol. If we were really concerned about preventing recidivism, we would focus on working with the incarcerated to change the way they react when they are faced with stressful trigger situations. We would, in other words, focus our penal system on rehabilitation. Quite obviously, we do not. | | | | |
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< | Why We Incarcerate | >
> | The problem with the second argument is that time in prison is damaging. When convicts are eventually released into a community, they are mentally and emotionally worse off and they are more dangerous to the community. California's three strikes law "fixes" this problem by sentencing repeat offenders to life in prison. A nice, neat solution, except that it is economically untenable and leads to things like this. | | | | |
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< | There are three possible goals of incarceration: rehabilitation, deterrence (both of the individual and of future actors) and punishment. Rehabilitation is a concept that no longer exists in the American penal system. Deterrence is successful at its most basic level: without any form of criminal justice, we would have anarchy. However, deterrence has taken on a far greater import in the discussion of the criminal law. Today, laws are written and sentences meted out with the (stated) belief that they will somehow deter the individual being incarcerated and any future actors who might be tempted to perform a similar crime. This notion is a fallacy. Too often, we use the crutch of deterrence to justify what we are really doing: punishing. | >
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> | The more common deterrence argument is that punishing an individual today will deter potential future criminals. However, this idea has no place in the multitude of crimes that occur "in the heat of the moment." More significantly, there is no undisputed empirical evidence that deterrence is effective at all. Whether we're discussing heightened sentences, like the death penalty and three strikes laws, or increased law enforcement "tools", like stop & frisk or gang injunctions, deterrence is something we believe in, not something we actually know.
Moreover, when we make deterrence based decisions, those decisions are not based in fact. Not only do we lack data showing that deterrence in general works, we have no idea what degree of punishment will actually deter future actors. We are making value judgments: what activities should be deterred? What penalties are necessary to create deterrence? How harshly are we willing to punish individual human beings to achieve that deterrence? But if we accept that, as an empirical matter, deterrence is not proven to work, all these judgments boil down to is how much punishment does a particular crime deserve.
Punishment & Peace of Mind
Punishment is the primary goal of our criminal justice system. Someone has done something bad and he ought to pay for it. Theoretically, our legislatures determine how much he has to pay based on how bad an action he undertook. However, there is one factor that rarely gets mentioned in discussions of appropriate punishment: peace of mind. Perhaps this is because we are not comfortable baldly stating that we are okay with ruining the lives of criminals (and sometimes their families) and tearing apart communities so that we can sleep better. But this is precisely what we do.
One of the most high-profile | | | | |
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-- By JohnSchwab - 21 Feb 2010 |
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< | | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | | | It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted. | |
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-- By JohnSchwab - 21 Feb 2010 | >
> | Robinson's Defense | | | | |
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> | There are millions of lawyers doing millions of jobs all over the world, but there is something about the work of the criminal defense lawyer that makes many of us (and by "us" I mean us in law school and us, the general population) think, "Oh, I could never do that." But why, exactly, do we say this? | | | | |
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> | There are three possible goals of incarceration: rehabilitation, deterrence (both of the individual and of future actors) and punishment. Rehabilitation is a concept that no longer exists in the American penal system. Deterrence is successful at its most basic level: without any form of criminal justice, we would have anarchy. However, deterrence has taken on a far greater import in the discussion of the criminal law. Today, laws are written and sentences meted out with the (stated) belief that they will somehow deter the individual being incarcerated and any future actors who might be tempted to perform a similar crime. This notion is a fallacy. Too often, we use the crutch of deterrence to justify what we are really doing: punishing. | | | | |
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What the Criminal Law is. | | | | |
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> | -- By JohnSchwab - 21 Feb 2010 | | |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. |
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It is strongly recommended that you include your outline in the body of your essay by using the outline as section titles. The headings below are there to remind you how section and subsection titles are formatted.
Paper Title
-- By JohnSchwab - 21 Feb 2010
Section I
Subsection A
Subsub 1
Subsection B
Subsub 1
Subsub 2
Section II
Subsection A
Subsection B
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