Law Without Justice

Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve, By Paul H. Robinson and Michael T. Cahill, Oxford University Press, New York, NY 311 pages, $35, 2005

Reviewed by Heidi Boghosian

Wearing a tattered bathrobe and slippers, and muttering to himself, reputed mob boss Vincent "Chin" Gigante for years wandered the streets of New York’s Greenwich Village. Prosecutors claimed he was feigning insanity to avoid a prison sentence, while his attorneys said that he was mentally ill and incapable of running a crime family. The so-called “Oddfather“ was ultimately sentenced to prison on racketeering charges, and also pleaded guilty to feigning mental illness.

This well-known case is the exception to the rule—abusing the insanity defense is actually quite rare. Despite that, many jurisdictions often narrow or reject legitimate that and other legitimate legal defenses purely out of concern that attorneys will unfairly exploit them. Fear of “gamesmanship” is one of several reasons that our system of laws and punishment has run counter-intuitive to our notion of justice.

In “Law Without Justice,” Paul H. Robinson and Michael T. Cahill expertly confront departures from justice and the resulting harm to the legal system’s credibility. They define justice as assigning criminal liability and punishment according to the principle of “desert,” giving offenders the amount of punishment they deserve. The book’s evenhanded assessment of the rationale behind laws that do not mete out fair penalties helps render comprehensible a system that frees culpable offenders and sentences the morally blameless to life behind bars. To show how the system balances competing goals, Robinson and Cahill adopt the unusual approach of cataloguing criminal law doctrines according to how they depart from justice. The inspired result blends erudite analysis and expedient recommendations for reform.

One category of doctrines--practical constraints—acknowledges that limited resources sometimes necessitate compromise in order to maximize justice overall. Rules are created such as plea bargains, strict liability and rejection of exculpatory defenses to prevent manipulating the system, advance evidentiary reliability and maximize limited resources. The authors tell of a rape victim who repressed memories of her attack, dropped out of school and drifted for years, but finally received therapy and was able to identify her assailant. Since the statute of limitations had passed, however, the rapist was never convicted. “Both statutes of limitation and strict-liability rules run a serious risk of sweeping too broadly, either excluding or including some cases beyond those for which the underlying reliability concern genuinely applies.” Robinson and Cahill assert that it is possible to make rules with reliability goals that also maintain flexibility to avoid injustice.

The other category of doctrines—competing interests—is based on decisions to outright sacrifice justice in order to further other goals such as crime control and maintaining procedural fairness. Rules aimed at achieving these goals include those that impose harsher sentences, that limit police actions and that criminalize more specific conduct to avoid constitutional invalidation of vaguely worded offenses.

Many of the “competing interests” rules are based on the deterrence rationale, regardless of whether they in fact deter. Noting that the system confuses detention of the dangerous for purposes of prevention with detention of the guilty for the purpose of punishment, Robinson and Cahill suggest that some are detrimental to the system:

The very act of sacrificing desert to promote deterrence may actually cause a net loss of deterrence….Social scientists increasingly believe that the criminal law’s moral credibility is the true source of its power to gain compliance. Each time the criminal law is used to punish blameless offenders, its moral foundation—the ultimate source of its ability to shape the community and internalize individual norms and to stigmatize the conduct is prohibits—is incrementally weakened.

Crime control goals put grandfather Charles Almond behind bars without possibility of parole for 15 years for firing a bullet into his television set during a family squabble about what to watch. Habitual-offender statutes and sentencing guidelines attach weight to past records that can as much as quadruple the punishment. Mr. Almond had committed three crimes dating back over 30 years.

The authors propose that the goals of curbing police and prosecutorial misconduct may not be best served by the Fourth and Fifth Amendment exclusionary rules, especially when “alternative, nondeviating mechanisms are available that would promote the control-of-officials goal while also advancing the desert goal.” One way to do this without excluding reliable evidence is levying a fine against police violate the Fourth Amendment—a civil-damages remedy introduced in Congress but not enacted.

Using criminal law to help regulatory agencies do their work is a goal clearly better dealt with outside the criminal justice system. “Law Without Justice” tells of an adventurous camper, Tom Lindsey, who violated campground regulations by using a gas stove and rafting two hours too early. Mr. Lindsey was arrested on criminal charges and lost his job because his supervise witnessed the arrest. The authors find troublesome the blurring of criminal and civil penalties:

In addition to expanding criminal liability to include minor conduct, the proliferation of regulatory crimes is counterproductive on its own terms. First, by imposing criminal liability in cases lacking in moral blameworthiness, the practice undermines the very characteristic of criminal law that regulatory-offense advocates seek to press into service. Criminal penalties are thought desirable because they bring to bear the moral condemnation that civil liability does not, but using criminal sanctions in morally neutral cases only dilutes criminal liability’s condemnatory effect over time.

Alternative punishment methods may be as effective as incarceration for desert-based liability, such as house arrest, weekend jail, electronic or other monitoring, fines, victim restitution, community service, counseling, regular drug testing, and mandatory job training. “[A]ll of them impose some degree of intrusion, aggravation, or suffering for the offender. Thus, so long as the total ‘bite’ of the punishment imposed is that which the offender deserves, they can be as effective as imprisonment in imposing the punishment deserved.”

In “Law Without Justice,” Paul H. Robinson and Michael T. Cahill, both law professors and criminologists, reveal a system of criminal law that has departed, often intentionally, from the practice of doing justice. The resulting costs are prohibitive when an entire system loses moral credibility, and as a consequence, its effectiveness.