Arnold Kling  

Criminal Law in Theory and in Practice

Should Banks be kept Small?... Weekend Commentary...

Cato sent me a copy of In the Name of Justice, edited by Timothy Lynch. It's not my field, so I just read Lynch's introduction. He describes a litany of ways in which our criminal justice system takes away Constitutional protection. It fails to conform to any theory of either utilitarian or retributive justice.

I wonder to what extent the practice of criminal justice in this country is centered around the issue of keeping people we consider dangerous off the streets. That might explain why we are happy with incarceration, even though we are not that committed to deterrence and we are not overly concerned with retribution. It might explain why rehabilitation is not such a priority. We have very low expectations for that you will rehabilitate, and we just want you off the streets.

I'm not saying I endorse this approach. It's highly problematic, especially when one considers the subjectivity in deciding who we want to take off the streets. I'm just saying that if you want to explain our justice system in practice, you might go with the theory that its goal is to pull people off the streets based on the judgment of law enforcement officials.

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CATEGORIES: Economics of Crime

COMMENTS (7 to date)
Fabio Rojas writes:

Arnold, you almost sound like a ... sociologist!

On a more serious note, this is a pretty big topic among social scientists interested in the origins of social policy. There's much to be said that public policy is about controlling groups you don't like, rather than achieving a specific outcome.

The Cupboard Is Bare writes:

It's been my experience that police precincts located in higher income areas tend to be more proactive in that they will attempt to prevent crimes from being committed; whereas precincts located in middle to lower income neighborhoods tend not to get involved (if they get involved at all) until after a crime has been committed.

The reality is that it's not the duty of the police department to protect you...only to pursue those individuals who have broken the law. But in practice, the law is more inclined to pursue those who have preyed upon large corporations, special interest groups or those individuals who are wealthy enough to afford a hotshot attorney.

Again, this is simply what I have experienced and/or been told by law enforcement.

Joshua Lyle writes:

Hmm. "Keeping people off the streets", i.e.: physically removing from provably dangerous people their access to victims, is pretty much the only kind of criminal justice I believe in, excepting that the some of the response to most "criminal" acts that actually hurt someone should be aimed at restitution, but that's generally now considered to be civil justice.

I'm not sure how that fails to be at least arguably utilitarian, unless you have an a priori claim that incarceration causes more suffering than denying incarcerated people the ability to affect victims prevents.

James A. Donald writes:

America has a big problem with a group of people with extremely short term time preference. Such people cannot be rehabilitated or deterred.

People whose ancestors always lived in tropical countries have a shorter time preference than people whose ancestors lived in countries where cold weather would kill you, and you would starve in winter if you had not stockpiled food in summer.

In recent history, Africans solved the problem of those Africans with the shortest time preference by selling them into slavery. A penal policy of locking them away is the modern substitute for slavery. Of course, morally, locking people up for who they are is wrong. You have to lock them up for what they do. Therefore, one has to engage in retributive justice in ways apt to have the effect of keeping such people locked up - which is not, however, what the American system of justice does. Rather it locks those up who cannot afford their own lawyer and who government decides needs locking up.

Keeping them incarcerated sure helps to get votes!

jurisnaturalist writes:

I'd settle for a restitutive legal system rather than a retributive one. Do we really want people to exact revenge through the legal system? I thought the legal system was a way to satisfy victims without recourse to revenge.

El Presidente writes:

The criticism is appropriate. The root of the problem, or peculiarity if you like, is that our laws are not predicated on unified theory save the theory of representative democracy. Laws don't have to make sense. We try to find sense in them, but they really are reflections of community standards or legislative sentiment at particular points in time. Over time they become more or less relevant, desirable, or effective (to whichever end we prefer).

It would be nice if we at least tried to keep them current. I've thought it might be wise to periodically require that we have a one-for-one swap whereby we must eliminate an old law for every new one we enact. That might compel a little legal housecleaning, but it also might turn legal frameworks into Swiss cheese. Alternatively, we could have a requirement that all laws be reviewed and reaffirmed periodically by the legislature. That might cause legislators to seek simplicity. I don't know. Just my thoughts.

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