We understand the facts: many interest groups have an incentive to keep the machine running as it does. But to pose a Cohen(ian) question: how can we use a functionalist approach to possibly change the system? One suggestion may be simple experimentation (if the system would permit such a scandal). Our northern neighbor Canada has half the crime rate we do. And here’s another fun fact: Canada abolished the death penalty over 30 years ago and it still has a better crime rate than the US (who was it that said the death penalty was a deterrent?). I realize that there are differences in jurisprudence, history, crime classifications, and reporting but on balance we have a lot to learn from our peers, including Canada. If the US made a robust effort to engage in more experimentation with different criminal justice systems on a small scale to start, we might see some progress.

In law, the obsolescence of the criminal system as a deterrent and insurer of justice continues the prison industrial complex. If the law worked the way it is purported to work, then many jobs would be lost. Let's take Cohen's idea that courts maintain inequality: If most violence is caused by inequality and the legal system supports inequality, then the legal system maintains the violence under the guise of trying to mitigate it.

How do we move away from planned legal obsolescence? It would begin with Cohen's idea of basing legal concepts in either morals or empirical facts in order to make them realistic. To move away from systematic failure would mean acknowledging the failure. Then what? How do you use a failing system to change systematic failure?

TBC...

-- RachelGholston - 31 Jan 2012