Legal Commentary

The Criminal Justice Leviathan : Who Should be in Jails and Prisons and Why? Right and Left Join to Take On U.S. Over Criminal Justice - NYTimes.com

By Andis Kaulins

But for what reason?

As my first mentor at Stanford Law School, Herbert Packer, cogently explained in his book The Limits of the Criminal Sanction, there are many undesirable things in society which are simply not rightly subjects for the criminal justice system, and yet, as Adam Liptak observes in his November 23, 2009 New York Times article,
Right and Left Join to Take On U.S. Over Criminal Justice
there are, by count of the Heritage Foundation,
currently over 4400 criminal offenses in the U.S. federal code.

When I taught Anglo-American law in the FFA program at the University of Trier Law School in Germany, I delighted each semester in asking my fledgling first-year students, who were also in the process of taking their first course in German Criminal Law [German Strafrecht], what the purpose of the criminal law was, and the almost unanimous answer given was that the purpose of the criminal law was to PUNISH offenders of the law.

And that is the view of the criminal law held by many people of many nations, also in the United States - a view which is as good as totally erroneous.

As I explained to my students, the PRINCIPAL PURPOSE of the criminal law is of course to PREVENT criminality, and not merely to punish people after the harm has already been done. Criminal sanctions are legislated in order to define and establish what kinds of human behaviour are legally undesirable in civilized society and to set penalties as high as possible to serve as barriers to the commission of legal wrongs. The more heinous a forbidden legal action, the higher the penalty which the law threatens. In legal terms, this is called DETERRENCE.

We have criminal laws because we hope thereby to deter the commission of crimes. The infliction of punishment is a necessary result of the breaking of those laws. However, the pure infliction of punishment is contrary to contemporary Western norms. Our modern Western Civilization is not a barbaric system of retribution but is rather based on the rule of law, which forbids the kind of blood revenge common in primitive cultures and backward religions. Indeed, the more significant the punishment component in law, the more primitive the society which imposes that punishment.

At Stanford, I helped John Kaplan, who became my mentor after Herbert Packer's tragic and untimely passing, write and edit his still extant textbook, Criminal Justice. One of his key lines of thinking about criminal law was the understanding that law is a reflection of the society or non-society out of which it emerges. Societal rules on the high seas are not the same as those in suburbia. Ultimately, whether a society is enlightened and civilized or is a barbarian collection of near savages is something which we can easily judge from their criminal justice system.

Read Liptak's article for potential forthcoming changes in the American criminal justice system.

Full post as published by LawPundit on November 24, 2009 (boomark / email).