Law in Contemporary Society

-- By JessicaGuzik - 26 Feb 2010

Why I Don't Like the Criminal Law System

How our criminal law system fits in with what I have learned thus far in law school

Before beginning law school, I could not understand why someone would want to become a criminal lawyer. The thought of defending someone who had willfully killed another person was disturbing to me. Not until a week or two into criminal law did I realize that the legal issues faced by criminals were much less black and white than I had imagined. I learned that there is an entire spectrum of distinctions even within one category of crime, and alongside each spectrum of crimes there is a corresponding spectrum of punishments. The obvious trend in the correlation between the crime and the sentence is that the more severe the crime is, the longer the sentence. From a theoretical standpoint, it seems to make sense to punish a person with a level of severity that corresponds to the severity of the act that they had committed. However, as we began reading through cases with the objective of coming to understand the most basic elements of criminal law, I began to feel frustration reading through the reasoning patterns that justices used to determine a criminal's culpability. I did not see the the same logical foundation behind the formation and application of the rules of criminal law that I have seen in other courses.

In torts and contracts, it seemed to me that the common denominator behind the laws was the maximizing of social welfare. This was primarily achieved through laws that provided people with correct incentives. Although this type of system will inevitably be flawed, the laws in these areas seemed to be the optimal solution for society from a theoretical standpoint. In criminal law, the objective of maximizing social welfare seems to apply as well. The strong correlation between the severity of the punishment and the severity of the crime indicates that a similar system of incentives is used in the hopes of attaining a social optimum. However, criminal law differs from areas like torts and contracts in ways that are critical and in ways that make me skeptical of whether this same paradigm is the appropriate way for the law to address crime.

Perhaps, however, you merely had torts and contracts teachers who told an absurd story about "incentives alignment" and the achievement of optimal social welfare that made the complex and messy business of the law's subservience to power seem instead a lucid and effective, if imperfect, system for the attainment of socially desirable ends. Perhaps the crimes teacher is unable to tell such a pretty, false story. If, for the sake of argument, that hypothesis were correct, what conclusions would follow here instead of the ones you presently express?

Why I am skeptical of the effectiveness of this system

The most striking difference between criminal law and the other areas of law that I have learned about thus far is that criminal law, unlike torts and contracts, does not predominantly involve offenders who are rational by social and economic standards.

Really? Do you think, then, that there are rational people in the world who turn up in torts and contracts cases, and irrational people who end up in criminal difficulty? Or is that further demonstration that the world presented by the torts and contracts teachers, with its tidy but idiotic assumption of human rationality, is a fairy tale covering a quite different reality that the criminal law cannot, owing to the nature of its material, hide?

They do not appear to be willing or able to abide by social norms (one example of this would be that criminals often appear to lack any sort of moral compass), and they do not appear to be capable of fully evaluating the consequences of their actions before acting on their desires the way that someone who is not inclined to commit a crime would. The type of person who would commit a serious crime is by his or her nature is unlikely to be deterred by a system that is intended for what our society considers to be a rational decision maker.

But many of the people who commit serious crimes—of theft, fraud, corruption, environmental poisoning, criminal mistreatment of workers, etc. in particular—are people "our society" not only considers to be rational decisionmakers, but immensely empowers and rewards for supposed excellence in making rational decisions. Shouldn't that have some effect on the argument you are making here?

As I learn how costly it is to maintain our current system, my frustration escalates, and I wonder if there is a better alternative.

While I was familiar with the high costs of maintaining prisons before learning about criminal law, I wasn't aware of how much time and money went into the process of trying and convicting a criminal.

This is an entire misunderstanding of the situation. All the time and money spent on trying the tiny proportion of criminal allegations that we actually try isn't a spit in a thunderstorm compared to the costs of incarceration. Even if you took all the costs of investigation, prosecution and defense for all the cases, including the vast bulk that are efficiently disposed of by negotiated disposition, that still wouldn't be within an order of magnitude of the costs of our madness for imprisonment.

We have only scratched the surface of criminal law in these past few weeks, but one element that appears in the majority of our cases is particularly disturbing to me. The time, effort, and money that is expended in the process of determining culpability is enormous, yet it seems to me that this decision is never reached in a way that is rational. The choice of the criminal's sentence often turns on a mental state which is factually impossible to determine, yet we still use expensive inputs in trying to answer this question. In the end, the answer seems to always be somewhat arbitrary in spite of these enormously large efforts.

The impression that this leaves me with is that criminal law consists of a set of rules that are constructed based on rational principles, but that usually apply to people who act irrationaly. I then see the enormous amount of money that goes into the application of these rules, which do not even seem to be applied with any sort of underlying logical consistency. I am extremely curious as to whether the final result of the use of such a system is a better country for us to live in. I'm not an expert in this matter, but statistics (if they are to be believed) would have me think otherwise.

The type of solutions I think would be appropriate for this issue

This problem is reminiscent of one that we have in the healthcare industry in our country. We have a massive population of people who are uninsured, and then we get upset when they run up emergency room bills whose costs they cannot bear. It would be better for us as a society to provide this population with preventative healthcare instead of waiting for the expensive health emergencies to strike, but we lack a system in place that would allow us to do so. The more I learn about criminal law, the more it seems to fit into this paradigm. In the cases we have read thus far, much of the harm could have been avoided if a third party would have intervened and taken preventative measures. Such preventative measures range from dealing with poverty to providing the means for those in abusive relationships to find solutions. While these options might be costly, they might also save us great amounts of money and social suffering akin to cutting down our emergency room bills.

You appear to have concluded that we should just go ahead and end poverty because that will save us money spent on criminal trials. Of course, you don't intend to win an absurdity contest, so you have something else to say instead of what is currently serving as a conclusion. But crime prevention is a difficult subject in itself, and impossible to analogize to the socialization of health care costs. Nor is it clear to me, inasmuch as no one I know believes that all crime is preventable, how the sudden swerve at the end towards crime prevention can alleviate the conflict of aims and means described in the essay.


Webs Webs

r3 - 13 Jan 2012 - 23:14:16 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM