Problems in the Criminal Justice System
by Hyman Bradofsky
WHAT WE should do about the criminal law has become a central legal and political issue of our time. Critics of many political and philosophical colors who have looked at the system recently have asserted with a surprising degree of unanimity that its current operations are unsatisfactory. The discontent takes many forms, but most of it goes to basic premises rather than to superficial or technical aspects of the system.
An increasing number of thoughtful people are disturbed about the justifiability of punishment for its own sake as the goal of the system. Others emphasize the poor results of the criminal system, its dubious effectiveness as a means of motivating compliance with social norms. These critics note the high rate of recidivism and the want of evidence that the process either reforms or deters. They have reality on their side, for the system has shown little capacity to influence the small, but significant, number of truly vicious and dangerous men who are fully committed to a predatory and violent life. Nor does it appear an effective or humane way to respond to the much more numerous groups, the pitiful inadequates who constitute the grist of the criminal justice system’s mill – the addicts and alcoholics, the frustrated, the immature, the cheated and the disinherited.
Even more problematic is the claim that the significant impacts of the criminal law is on the law-abiding, by keeping us “square johns” straight and by discouraging criminality. This claim underestimates the extent to which our law-abidingness is the product of conditioning factors independent of the criminal law and much more potent. Group, family, moral, and other internal compunctions operate with greater force and in situations in which the fear of getting caught and being degraded or punished is not a significant factor. Conversely, there are few situations in which the criminal law operates but these stronger sanctions do not.
Another kind of dissatisfaction is created by the everpresent threat of authoritarianism implicit in the enforcement system. The penal sanction employs agents who are the most visible and immediate form of public power in society and these agents, particularly the police and the prosecutor, are closely identified, and identify themselves, with the infliction of force and authoritarian suppression. We all fear the third degree and police brutality, and no citizen of the twentieth century can be oblivious of the inherent coerciveness of the system, to the threat of a police state, or to the potential for the undue intrusion of authority into our private lives.
A third, no less important, kind of dissatisfaction grows out of the failure of our system of criminal law enforcement to satisfy the community’s thirst for justice or to serve as a suitable symbol of our values. It is easy to understate the importance of the symbolic function of justice, for the point has a corny ring to it. But the reality is that social life becomes untenable without a sense of justice and, in the long run, will destroy itself.
Order must be reflected in the larger social structure, or the effort to impose it with police and law will fail. It is because law enforcement has only a limited potential to motivate compliance that it can do its job only if it acts in ways consonate with the sense of justice men carry around with them. Yet one need only observe our courts, our police stations, or our prisons in action to realize that today’s system often fails to do that. This sense of injustice is felt by those who are shocked at the routinized bureaucracy, usually callous to the individuals it acts upon, often squalid and mean, and too frequently venal and corrupt in its works. It is shared as well by those who charge that the law is preoccupied with nicety at the expense of substance and engages in pettifogging in the name of constitutional principles and inhibits the system’s already limited capacity to do justice. Both perceptions of injustice are fed when we see, as we too often do, the vicious go free or receive absurdly lenient treatment while the poor are victimized, and the naive treated harshly.
We are faced with the realization that the criminal law must be changed radically and gnawed at by our sense that the established reformist program just would not get us there. We have been oversold on the capacity of rationalization, procedural change, and substantive law reform to renovate the foundation of the criminal justice system. We have seen drastic procedural reform in the name of the Constitution, led largely by the Supreme Court of the United States, but abetted by a number of enlightened state judiciaries. Correctional reform has been widespread. Much of it has centered around the growth of the rehabilitative ideal and the relative decline of the prison in favor of increased emphasis on programs of treatment of offenders within the community. Much more remains to be pursued for significant changes in the criminal justice system. Reform must not only be concerned with the rules but also with institutions. Yet the mood of observers of the criminal process is dominated by a sense of the unchanging quality of the system. Too often, reform has underachieved. There have been modifications in procedure but little change in essential practice.
The thrust of this commentary is that we should concentrate first on law reform and then get around to reforming men and institutions. Reform that is concerned only with rules and not with institutions will fail.
A Lament for John S. Carroll
by Jake Warner
MOSTLY I appreciate the ease with which my computer makes changes in the NAPA mailing list. It is a matter of minutes to change someone’s address or to add a new member. After a year when the new member drops, removing his name is quickly done. But there are times when I find the procedure completely inappropriate. When I was told of the death of John Carroll, for example, all that was required was to type “delete,” and his name disappeared from the list as if it had never been there. And that’s not right. The computer should have groaned and printed: “NAPA will not be the same without John Carroll.”
I never met John Carroll. Had he ever shown any sign of wanting to meet me, I would have met him. But John and I were friends of a sort through correspondence and through our journals.
When I joined NAPA in 1969, John’s Phlugg was going strong. It was always involved in some controversy. John always argued about ideas. He attacked without mercy or restraint so that his attack was often devastating to his victim. But he was impersonal about it, and any suggestion that he had “taken the skin off” someone would bring an instant denial that he would attack anyone. His claim was substantially correct, but it was not always so clear to his victims. Now and then he did get a little personal as when he declared that Milton Eisenhower was as great a dunce as his brother.
In 1972 John published a Phlugg in which he gave rules for writing a short story. Tom Whitbread said John’s advice sounded more like the rules for a boxing match. I published a Boxwooder with the brave title (in 8-point type), “Who’s Afraid of John S. Carroll,” in which I argued with his views. This started a correspondence that continued until his death. As I explained in that issue, I liked to argue with John but my main difficulty was that I thought he was right about two-thirds of the time. Also it was very difficult to best him in an argument even if you were sure he was wrong because he was intelligent, resourceful, well-read, and he was a clear and incisive writer.
John often took issue with something that appeared in my journal and had nothing but scorn for my argument that I did not completely support every opinion that I published. His feeling was that if you published works by others which did not completely reflect your views that you had become a “mere printer,” and your journal was not worth reading.
John was also quick to point out errors in my journal. He did not mind typos and minor errors, but errors of fact or logic and serious errors of grammar would bring a quick response. When I published Boxwooder #149 with the title, “The Imposter,” on the cover, I immediately received a card from John which contained only this one sentence: “An imposter is a tax assessor; one who pretends to be someone he is not is an impostor.”
But John was also generous in his praise and support when one published something he liked or thought was well done, and I had many letters from him in which he expressed agreement with my points of view or voiced his appreciation for the arguments I had advanced.
If John was wrong about something factual rather than something that is a matter of opinion, one could convince him if one had strong evidence. He had not kept up with the development of home computers and maintained that they were not accurate enough to use with in his optics calculations. When I showed him that with the double-precision capability that Microsoft BASIC allows, one could calculate logarithms and trigonometry functions to more places than can be found in any book of tables, he agreed that he had been mistaken.
Not all of our correspondence concerned arguments or differences of opinion. John was one of those rare people who really knew things – he was a storehouse of information. When I was trying to find out about type blight, he sent me reproductions of articles from many old technical journals that gave the details of his experience with it. He knew a great deal about type, type-founding, roller casting, music, pipe organs, sound, optics, and who knows what. Over the years he gave me a great deal of information about many things. What John knew, he really knew.
His thirst for knowledge did not slacken with age, and he did not shy away from tackling difficult things. A year or so ago he wrote me that he had heard that if one had the waveform of a sound that it could be broken up into its harmonics by Fourier analysis. Could I tell him how to get started on how to do this analysis? Could I recommend a book where he could find out how to perform Fourier analysis? I spent several hours writing a tutorial on this because, though it is basically a simple matter, it is very difficult to grasp it at the beginning from a book and sent it to John with the word that I could send him further details if needed. He replied: “You’ve sent exactly what I needed; I can carry on from there.”
In Boxwooder #101 I compared John with H. L. Mencken: “…when John called up H. L. Mencken as an authority, I knew all of a sudden whom John reminds me of. They have so many similarities that I’m surprised I didn’t think of it before. Uninhibited, outspoken, curmudgeon-like, wielder of ridicule, Teutonic, usually right, now and then outstandingly wrong-headed – I could go on and on. Both are good writers. Whether you agree with John or not, his writing is straightforward and crystal clear…. Right or wrong, he has something to say, and he knows exactly how to say it.”
John was pleased with the comparison with Mencken. He said that Mencken was his model for writing. He stoutly maintained that since he had no German blood he could not be Teutonic. I could not convince him that there are more Teutons than there are Germans.
I shall miss him very much.
Handset in Deepdene; display type is Stylescript. Cover and text stock are unknown; ink is Van Son 40904. Edited and published by Jake Warner who printed 460 copies on a 10×15 C&P.
The Boxwood Press
Greenbelt, Maryland 20770