Legal Commentary

A terrible crime is committed, the kind that brings scores of relatives to their knees in grief and sets thousands more residents on edge; the kind of crime that can lead people to question their own sense of the rightness of the moral order in which they live.  A wrong doer is identified.  Upon him the moral outrage of the community is turned.  Through the expression of that outrage in punishment (originally in the most physical and painful ways), the sense of rightness to the moral order is restored. 

This, in cliff-note form at any rate, is the theory of the social function of punishment proffered by pioneer sociologist Emile Durkheim in his 1893 book De la division du travail social (The Division of Labor in Society).  Most sociology and criminology students over the years have acknowledged that it captures at least some of what the complex processes we call ?criminal justice? represents (but also processes like lynching and the torture of enemies). Durkheim was arguing against the optimism of penal reformers in his era who believed that the primary function of criminal justice was social defense through the rational operation of deterrence, incapacitation, and where possible, penal reformation.  Efforts to cloak the criminal justice system in the clothes of rational science and organization, Durkheim believed, would be frustrated by the persistence of the emotional and moral responses that he described.

In America, paradoxically, our public has always supported the optimistic reformist ideology about penal justice. (See my article on Lombroso and American popular consciousness in the Texas Law Review, 2005).  Even our recent turn toward very extensive use of imprisonment has been promoted relentlessly on the claim that prison works to reduce crime.  Ironically, it is the law enforcement establishment, ---that modern bureaucratic nexus created to realize the modern goals of social defense, police and prosecutors especially, --- who seem to believe in the Durkheimian version of their job description.

Case in point, Austin Texas, as described in James McKinley Jr.?s finely written and researched article in today?s NYTimes on a terrible crime committed 17 years ago in that city, and the likely wrongful convictions that have emerged thanks to DNA testing.

So why do police take every kind of risk with the truth to obtain inculpating evidence from suspects, even in the absence of strong reasons to believe in their guilt (for an account of these high risk practices in the confession area see Richard Leo's recent award winning book, Police Interrogation and American Justice)?  And why do prosecutors pursue such cases, often in willful blindness to the questionable nature of the evidence and sometimes long after strong reasons have emerged to question those convictions obtained?  It may be that the people who are drawn into law enforcement share an emotional and moral sensibility about crime that better fits the Durkheimian account than the average American.  It may be that exposure to the pain and suffering of violent crime at close range that police officers and prosecutors receive on the job, leads them to have a greater need for the kind of emotional release that Durkheim described.  But I fear it is most likely because as an account of what their job is about, i.e., to give the community a target for it?s emotional and moral dis-ease in the aftermath of a terrible crime, the Durkhiemian vision is one much easier to accomplish (provided they maintain a blue wall of silence around any mistakes) than the complicated, hard, and often frustrated pursuit of social defense through the arrest and conviction of actual criminals.