"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

Andrew: My understanding of your comment above is that:

(1) The criminal justice system catches those who fall through the cracks of the other institutions designed to make society run smoothly.

(2) Since it is populated, inherently, by those who couldn't pull it off given those other opportunities, it must look terrible.

(3) The terrible nature of the criminal justice system - therefore - cannot tell us that those other systems in society were broken.

I am not 100% sure what "utilitarian" means. I looked it up, but you will have to forgive me for my crude understanding. However, I think it is pretty clear that with one in every 31 American adults tied to the criminal justice system (incarceration, parole, probation) at a cost of over $60,000,000,000/year (not including new prison construction which is projected to be an additional $5 or $6 billion a year) it is quite possible we are losing more by supporting the prison industrial complex than we could ever gain in “white collar comfort.” There are certainly better ways to spend our money and the best evidence is just how broken those other systems (except possibly Sesame Street) you mentioned are.

If our schools are designed to keep our children out of the criminal justice system and your average high school in a poor community has a lower than 50% graduation rate, you have a broken safety net. If our sex-ed classes are supposed to prevent teenage pregnancy, but all we have is a gym teacher telling folks to abstain, of course young children are going to be having children of their own. My point is that, one reason our criminal justice system is so overburdened is because the very safety nets you mentioned doesn’t work. And, as a former teacher in urban schools and a product of public schools myself, I can assure you that it is not the “bad kids” that slip through cracks; it is most of the best kids.

A more cynical person might say this is part of the design to maintain an underclass and feed politicians who are “tough on crime,” developers who provide the prisons, and a society that seems to prefer the poor in prison. If utility comes into play at all, the assessment is being done at the very top, by those who gain security and wealth from maintaining the status quo. If it was being done by your or me (or perhaps the people in the communities most effected by incarceration), I am sure our criminal justice system would look a lot different.

-- AdamCarlis - 25 Jan 2008

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

Andrew, In response specifically to your last two paragraphs, and with regard to what messages you say you are receiving from Eben, keep in mind that Eben is a self-admitted "splitter," not a "bridger." Take most of what he says in this light. Ultimately, it's up to you to learn what's out there, know your own abilities and limitations, then apply yourself to something with a goal that you (not Eben or anyone else) consider meaningful, then see what happens.

-- BarbPitman - 25 Jan 2008

• The opposite of "splitter" is "lumper." (The origin of this distinction is obscure, but as dichotomous styles of social description the names were first employed by J.H. Hexter.) Alternatively, one could say "fox" and "hedgehog," as Isaiah Berlin famously did in his eponymous essay on Tolstoy's theory of history. The fox knows many things, says Berlin, and the hedgehog one big thing only. Splitters are empiricists, multidisciplinarity junkies, believers in the exceptional and the particular. Hedgehogs are organicists, holistic thinkers, unifactorial determinists, believers in the recurrent and the overarching. I don't think that distinction has any relevance in this debate, because the splitter's part here is being taken, rather inelegantly to be sure, by Mr. Gradman himself.

• So far as the main discussion is concerned, Mr. Gradman seems determined to offer Holmes a logical argument for not asking a question--which of course is the square root of nothing so far as Holmes is concerned--while ascribing Holmes' question to me, on no evidence whatever except that I assigned the essay Holmes wrote, and labored (apparently incompetently) to increase Mr. Gradman's understanding of it. I am therefore presumed to be accountable for its "rightness," a mistake that not even a lumper could love. I don't need to be Holmes to point out the problem in Mr. Gradman's argument: should it turn out that the effect of the criminal law is to increase crime and the harms resulting from crime, which anyone of sound and independent mind is at least likely to entertain as a possibility, then--regardless of the various other "systems" into which offenders might be distributed--the purposeful justification of this system in Holmesian terms would be insuperably difficult. What good is a last-ditch solution to a problem whose primary effect is to make the problem worse? When you are trapped in a hole, one might say about matters general and particular, the best first step is to stop digging.

-- EbenMoglen - 25 Jan 2008

"should it turn out that the effect of the criminal law is to increase crime and the harms resulting from crime, which anyone of sound and independent mind is at least likely to entertain as a possibility, then--regardless of the various other "systems" into which offenders might be distributed--the purposeful justification of this system in Holmesian terms would be insuperably difficult."

1) Making a conclusive argument that the criminal justice system makes crime worse requires more than merely citing a few statistics, telling an anecdote and then stating the conclusion. I am happy to entertain that position, but would need to be exposed to a great deal more data to reach that conclusion. Whether one agrees with Eben's point or not, it seems to me that the focus in the discussion is what the effect of the criminal justice system is... which is exactly what Holmes would want us to explore.

2) Andrew's point concerning inputs and outputs seems to be the real issue, doesn't it? That is to say, it seems as though we should be investing resources in preventing people from turning to crime to begin with. It is unclear to me why one should not separate the problem of how to stop adolescents from turning to crime to begin with and what to do with criminals after they commit crimes. I concede the issues are connected, but that does not mean one cannot consider independent solutions. An interesting book that is tangentially related is Richard Rhodes' "Why They Kill"... which I am sure others have read. Mr. Rhodes' suggests that violent offenders are rational actors who have learned to use violence as a tool to solve problems. Further, that once learned, it is very difficult to get someone to unlearn. Which leads me to my next point.

3) What if this system is the best option? What if any other system would create even MORE harm? I am not saying this is a fact, merely that one would need to entertain that concern as well... which, if true, would then provide a Holmesian explanation for keeping the current system in place. If violent offenders are highly unlikely to be rehabilitated regardless of the where put them/how we handle them is not society best off by keeping them off of the streets?

4) "When you are trapped in a hole, one might say about matters general and particular, the best first step is to stop digging."

True. Of course, one characteristic I have noticed about holes is that if I leave them alone, they won't rob my house for drug money when I am away.

-- SandorMarton - 26 Jan 2008

"Making a conclusive argument that the criminal justice system makes crime worse requires more than merely citing a few statistics, telling an anecdote and then stating the conclusion."

I think Eben's argument was meant to do two things: (1) take the prescriptive step of suggesting to us that the criminal law system is broken and that it might well be wise to sack it entirely, and (2) take the preliminary step of shifting the burden of proof in the debate. Sandor, I think you're right that any "conclusive" argument on point (1) would require more than a few statistics and anecdotes.

But I think Eben was successful in shifting the burden of proof. Statistics and anecdotes help shock us out of our complacency and force us to consider, as Holmes suggested, that the fact that the criminal law exists in its present form is no reason to suppose that it is effective. There is a presumption that the burden is on the individual seeking to change a 1000-year institition to conclusively show that it doesn't work. Actually, the fact that the criminal law has been around for 1000, 2000, 5000 years shouldn't give it a privileged position at all. Anyone seeking to justify the criminal law bears as high a burden as does anyone seeking to tear it down and start up again. The costs of social revolution in this context, while high, are not obviously higher than the social costs of the current system. If a proponent of the system thinks otherwise, the burden is on her to show it.

Privileging the current state of the system has too much of the "I know my teddy bear keeps ghosts away from my bed, because I've never seen a ghost near my bed." Trying alternatives is essential to validating current systems.

-- MichaelBerkovits - 26 Jan 2008

Ah. Misread the original post. I understand Eben's point now.

Mike: I agree with you that inertia is not a good reason to keep a system in place. However, if you want to make a change, one at least needs to know what one wants the change to be and the costs associated with that change.

Comment directed at no one in particular:

The main thing that I took away from our discussions of criminal justice in class was that the American prison system represents a pressure point. Jails are so expensive and overcrowded that many states are looking for a way out of the problem. This kind of crisis can be exploited. It can be used as a way to push institutional reform forward despite the usual forces of resistance.

How individuals answer the big questions of “Does punishment deter?” and “Does criminal justice work?” will probably determine how individuals try to exploit the prison crisis in order to reform the system. In other words, these questions will probably do more to determine the end point of change and not the starting point. The starting point is a crisis that creates a climate in which change is possible.