Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve

Paul H. Robinson, University of Pennsylvania Law School
Michael T. Cahill, Brooklyn Law School

Abstract

The criminal justice system's traditional goal (which it continues to advertise itself as pursuing, and which most people expect and hope that it will pursue) is to do justice: to punish offenders for their improper conduct. Yet the assignment of criminal liability and punishment commonly, and often systematically, deviates from what justice, in the sense of deserved punishment, would require. These deviations are in both directions: they impose undeserved punishment, and they fail to impose punishment when it is deserved.

This book looks at situations where such failures of justice are not accidental or case-specific, but result from the proper application of a legal rule --- situations where undeserved outcomes occur because of law, not in spite of it. We survey and examine the numerous rules that cause these deviations, exploring their justifications and their defensibility. We have identified seven rationales on which doctrines that deviate from desert are grounded. Three of these rationales are consistent with the larger goal of achieving desert, but are rooted in the underlying premise that desert's abstract demands and its practical possibilities sometimes diverge --- that potential abuse, practical problems of proof, and cost limitations require certain corrective measures that maximize desert in the real world, even if they appear to sacrifice it in principle. Four other rationales overtly sacrifice the desert objective to achieve some other goal, such as crime control or maintaining fair procedures, even if those procedures sometimes impede accurate desert-based liability determinations.

We find that some of the deviation doctrines simply do not serve, or no longer serve, the purpose for which they are intended. Other doctrines may serve their intended purpose (or may not; frequently their efficacy is untested or uncertain as an empirical matter), but could be replaced by other rules that would serve that purpose as well, but would not deflect the distribution of liability and punishment from desert. Still other doctrines advance interests that cannot be advanced in any way other than by deviating from desert, and therefore must be tolerated --- although there may be ways to mitigate or minimize the deviations.

Although it is impossible entirely to eliminate all failures of criminal justice, by taking a broad view, and considering the issue of deviation as a whole rather than case by case, we may arrive at significant insights. In addition to calling into question the merits of individual problematic rules, this book provides a rich and panoramic view of the numerous overlapping, and sometimes competing, goals that drive the structure of the criminal justice system.