re-write in progress

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.

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.

DETERRENCE ANALYSIS: COSTS AND BENEFITS

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.

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.

The first argument is easy to dispose of. Studies show that much individual crime is a reaction to an immediate, stressful situation and that the perpetrators are often under the influence of drugs or alcohol. If we were really concerned about preventing recidivism, we would focus on working with the incarcerated to change the way they react when they are faced with stressful trigger situations. We would, in other words, focus our penal system on rehabilitation. Quite obviously, we do not.

The problem with the second argument is that time in prison is damaging. When convicts are eventually released, they are mentally and emotionally worse off than they were at conviction. They may be even more dangerous to the community. California's three strikes law "fixes" this problem by sentencing repeat offenders to life in prison. A nice, neat solution, except that it is economically untenable and leads to things like this.

Future Actor Deterrence

The more common deterrence argument is that punishing an individual today will deter potential future criminals. However, this idea has no place in the multitude of crimes that occur "in the heat of the moment." More significantly, there is no undisputed empirical evidence that deterrence is effective at all. Whether we're discussing heightened sentences, like the death penalty and three strikes laws, or increased law enforcement "tools", like stop & frisk or gang injunctions, deterrence is something we believe in, not something we actually know.

Moreover, when we make deterrence based decisions, those decisions are not based in fact. Not only do we lack data showing that deterrence in general works, we have no idea what degree of punishment will actually deter future actors. We are making value judgments: what activities should be deterred? What penalties are necessary to create deterrence? How harshly are we willing to punish individual human beings to achieve that deterrence? But if we accept that, as an empirical matter, deterrence is not proven to work, all these judgments boil down to is how much punishment does a particular crime deserve.

Punishment & Peace of Mind

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.

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.

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

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

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.