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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. | |
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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? | >
> | 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 | |
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< | 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. | |
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< | 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. | | | | |
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> | 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 | |
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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. | | |
-- By JohnSchwab - 21 Feb 2010 |
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