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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. |
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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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< | 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. |
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> | 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. |
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> | DETERRENCE IN AMERICA |
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< | 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. |
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> | 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. |
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Crime Prevention |
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< | 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. |
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> | 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 |
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< | 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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> | 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 |
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< | 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. |
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-- By JohnSchwab - 21 Feb 2010 |
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< | 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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