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.

Punishment & Peace of Mind