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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. | | | | |
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> | 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. | |
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> | 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 | |
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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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