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Linked from ClassNotesJan23: | |
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< | "Does the criminal law do more good than harm?" is a straw-man question. To think that answering NO condemns our criminal law is a fallacy of distribution. (a cool phrase I found in one of the readings.)
YES, I agree that we do more harm to the people we incapacitate than we prevent to their potential victims.
However, over-incarceration only indicates a hysteric willingness to punish (relatively) victimless crimes -- i.e. utilitarianism with the thumb on the scale of white-collar comfort. It CANNOT logically tell us that we have underutilized softer options with better utilitarian outcomes.
The criminal law does LOTS of harm, because it's the last tool we have. We reserve incarceration for cases that were least responsive to the rest of the system. It is the last and most drastic of a series of processes designed to effect the goals (esp. utilitarianism) of a whole swath of crime-related law. This complex includes elementary schools, churches, special-ed programs, unemployment insurance, sex-ed classes, Sesame Street, civil courts as fora for disputes, and criminal sanctions. In a legal system seen functionally, all these have criminal implications. (I guess they're also all Criminal Law, since Sesame Street is on PBS.)
"Could we better distribute potential perpetrators among this system?" Perhaps we SHOULD shift harms dealt with ex-post by the criminal code into the preventive, social code. We have made huge advances in psychology and education.
But it may happen that the optimum distribution of cases within this complex does not optimize each individual system. That's Cohen's fallacy of distribution. The criminal justice system is SUPPOSED to look shitty, because it catches the failures from every other system in the complex. | >
> | "Does the criminal law do more good than harm?" is a straw-man question. To think that answering NO condemns our criminal law is a fallacy.
YES, I agree that we do more harm to the people we incapacitate than we prevent to their potential victims.
However, over-incarceration only indicates a hysteric willingness to punish (relatively) victimless crimes -- i.e. utilitarianism with the thumb on the scale of white-collar comfort. It CANNOT logically tell us that we have underutilized softer options with better utilitarian outcomes.
The criminal law does LOTS of harm, because it's the last tool we have. We reserve incarceration for cases that were least responsive to the rest of the system. It is the last and most drastic of a series of processes designed to effect the goals (esp. utilitarian) of a whole swath of crime-related law. This complex includes elementary schools, churches, special-ed programs, unemployment insurance, sex-ed classes, Sesame Street, civil courts as fora for disputes, and criminal sanctions. In a legal system seen functionally, all these have criminal implications. (I guess they're also all Criminal Law, since Sesame Street is on PBS.)
"Could we better distribute potential perpetrators among this system?" Perhaps we SHOULD shift harms dealt with ex-post by the criminal code into the preventive, social code. We have made huge advances in psychology and education.
But it may happen that the optimum distribution of cases within this complex does not optimize each individual system. That's Cohen's fallacy of distribution. The criminal justice system is SUPPOSED to look shitty, because it catches the failures from every other system in the complex. | | | -- AndrewGradman - 25 Jan 2008 | | |
-- AdamCarlis - 25 Jan 2008 | |
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I DO agree that "we are losing more ... by supporting the prison industrial complex than we could ever gain in white collar comfort." Maybe we've put more than just a thumb on the white-collar-comfort side of the scale, or maybe utilitarianism is nothing but rhetoric, and the problem is that white-collar people are holding the scale. Either way, I agree that the criminal law does more harm than good, and I tried to make that clear above.
But to condemn something on utilitarian grounds, the question is not "does X do more good than harm," but "could X do even more good or even less harm." When we have defined X as the criminal justice system, the answer "there are certainly better ways to spend our money and the best evidence is just how broken those other systems [are]" may be TRUE, but it's unavailable. "Does punishment deter" cannot answer this second question either, when, as Eben points out, the real justification for incarceration is incapacitation.
If the prescription is more Sesame Street, free education, better sex-ed classes, etc., that's not a condemnation of the criminal law. It's saying that the criminal law system has too many inputs, because the system that precedes it has too many outputs.
I guess this is a point about questions, not about criminal law. It's an important point because in the previous night's reading, we learned to characterize a school of thought by the questions it asks. It's important because Eben started the discussion by asking this question, and it turns out to be the wrong question. I took Felix Cohen's essay very seriously.
But perhaps I owe more respect to the social problems caused by too many people in prison. After all, it doesn't matter what question you ask, at the beginning of class, if at the end of class you go out and do the right thing. Then again, this is law school.
-- AndrewGradman - 25 Jan 2008 | | | |
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