Law in Contemporary Society

The Myth of Criminal Justice

By Claire O’Sullivan

Effective criminal justice is a myth. Confessions are coerced; individuals are poorly represented; time spent in correctional facilities can induce less serious offenders to join criminal gangs for protection. Yet to understand the strength of the myth, and why it is perpetuated, we need to understand the role it plays. We need the myth of a just system in order to sustain our society in its current form. Criminal justice is one of the basic tenets of our system. It unites us against a common enemy, and thereby insulates us from having to look at the underlying reality of our society. However the exclusionary myth is not sustainable.

Why We Need the Myth

The criminal justice system purports to deter crime and punish criminals, which satisfies the need of the believers to feel protected and vindicated against criminals. The system itself is frequently unjust, but it creates the appearance of justice, largely in order to sustain itself. This allows for the perpetuation of the myth of an effective criminal justice system, which serves to unify those who are ostensibly served by it against those who are not.

The Myth Establishes the Community

For Arnold, all organizations are based around, among other things, a shared myth. This idea works nicely as part of an explanation for the entrenchment of the current criminal justice system in our society, in the face of overwhelming evidence that it does not function as it is supposed to. Jean-Luc Nancy says that it is the telling and re-telling of the myth that strengthens and unifies the community; we can see this in the news media, particularly TV broadcasts that focus on crime and criminal trials, as well as television shows and movies based on crime, police and lawyers. Law enforcement and the officers of the court are the heroes of these stories, which frequently result in the discovery of the truth and the well-deserved punishment of the criminal.

The Myth Maintains the Community

According to Nancy, the myth founds the community by uniting people in a shared belief, and also establishing the group as an “us” against the “them” of the outside world. In the case of the criminal justice system, the criminal justice system, the “us” is established as law-abiding citizens, against a “them”: dangerous criminals who should be locked away. Needless to say, those who are outsiders in this dichotomy do not view the criminal justice the same way as those who are insiders. Those who are excluded from the community are both those who run afoul of the system and those who receive no material or psychological benefit from it. For instance, a career drug dealer is clearly excluded from the community of self-proclaimed “good” people, who see the system as affording protection to them and punishment to others.

Consequences of the Myth

Sacrifice and Violence

As long as there are people who believe the myth, there will be violence done to in its name. The main purpose of the criminal justice system is to reaffirm the belief of the insiders in the myth of criminal justice. To that end, there are what Jerome Frank would call “sacrifices” to the system. The criminal justice system doesn’t work, but by sacrificing people to it we can pretend that it does, and that we have some sort of control over the meting out of justice and punishment in society. When someone is jailed or executed for a crime, it provides psychological satisfaction by making the believers feel like the system works as it should. Police brutality, inadequate representation, and questionable trial practices are all tolerated in the name of the myth as well.

Interrupting the Myth

Those who are clear outsiders have no faith in the myth of criminal justice. However, the doubts and skepticism of excluded individuals are not enough to interrupt the myth. The myth is interrupted when those who are nominally enfranchised within the system stop believing it. For instance, the woman who is sexually assaulted and finds reporting it to be a futile exercise loses faith in the myth, as does the mother of a juvenile delinquent who emerges from jail as a far more serious criminal than he or she was before. Those who are still protected by the myth will continue to believe in it, but they become a minority. Clearly, this will result in a serious destabilization of the community. An effective criminal justice system is one of the pillars upon which society rests, and when it is knocked out, confusion and upset will occur.

However, Nancy sees this as the necessary first step in the formation of a community that can include without excluding, because the essentializing and exclusionary myths are discredited. This is an ideal that is difficult to picture in a practical setting. Nonetheless, it seems possible that when the criminal justice system is discredited, it will provide an opportunity for the community to include those who were disenfranchised by that myth, and move us towards a more inclusive model. A possible example of this could be the action taken by the governor of Illinois in 2003, when he commuted the sentences of all the death row prisoners in that state. In doing this, he cited his belief that many past executions had been based on faulty processes.


It is difficult to see where the discrediting of the myth of effective criminal justice will take us. If Arnold is right, then it will probably be replaced by another, somewhat altered mythology. Even so, it is much more likely that those who are excluded from the community formed around this myth will be included if the myth is discredited, whether or not it is replaced. Viewing effective criminal justice as a myth leads to three conclusions: that our current system exists in order to create the appearance of justice; that this appearance creates community of “good” people by excluding “bad” people; and that the inevitable discrediting of this myth creates the possibility of dissolving this division.


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r7 - 12 Jan 2009 - 22:46:31 - IanSullivan
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