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The Myth of Criminal Justice

-- By ClaireOSullivan - 10 Feb 2008

It is far from clear that the criminal justice system serves its ostensible function of reducing crime and meting out “justice.” There are many reasons to doubt its effectiveness, and indeed to suspect that it may have the opposite effect: confessions are coerced; individuals are poorly represented; time spent in correctional facilities can induce less serious offenders to join criminal gangs for protection. The question then becomes: what is the actual purpose served by the criminal justice system in our society? There are many possible answers for this question, but in my opinion the most compelling is that the idea of criminal justice is part of the mythology of our society. The criminal justice system provides psychological satisfaction by perpetuating the myth of an effective, just legal system. That is, 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.

Mythology

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. The effective and just criminal justice system is part of the mythology around which our society is based. I am also drawing here on Jean-Luc Nancy’s “The Inoperative Community,” which sees contemporary societies as founded on myths, which provide a feeling of community and unity, but also result in the necessary exclusion of “outsiders.” Unlike Arnold, Nancy advocates for an overthrowing of the myth, rather than an understanding of how to work within it. I see his theory as providing a more optimistic alternative to Arnold’s pragmatism. Nancy refers to the doubting and discrediting of the myth as its “interruption,” and his idea of “interrupting” myths provides something of a practical way forward in my analysis.

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.

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 scepticism 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.

Conclusion

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. The process of breaking down the myth begins with asking questions like “does punishment deter” and “who does the system work for.” This constant questioning and the resulting destabilization will at least make room for the possibility of positive change.

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