Friday, July 10, 2020
William S. Laufer and Robert Hughes (University of Pennsylvania - Legal Studies Department and Legal Studies and Business Ethics Department, The Wharton School) have posted Justice Undone (American Criminal Law Review, Vol. 58) on SSRN. Here is the abstract:
There is far more justice that is not served than served in our criminal justice system. Well more than half of all offending and victimization fails to make its way into the criminal justice system. An additional share of wrongdoing from initial police contact to the end of the criminal process is diverted or exits. A host of additional personal, system, and societal factors constrain the administration of justice to respond to criminal wrongs. This Article introduces the idea of justice remainders or the omission of the state’s response to crime. Justice remainders include both justified and unjustified failures to punish the guilty. The total of all justice remainders is the sum of justice undone. It is argued that the: (a) moral indignation and outrage over many types of justice remainders are simply and remarkably missing and (b) distribution of these remainders are race- and class-based.
This Article shows that theories of criminal law with significantly different assumptions and premises nevertheless support three conclusions about justice remainders. First, the state has a duty to address systematic justice remainders that involve either the failure to enforce an important criminal prohibition or a profound inequality in the effective protections of criminal law. Second, the state may be able to remedy some justice remainders with a commitment to effective and humane reforms to penal laws and practices. Finally, the state has a duty to provide public recognition of criminal wrongdoing when just punishment is impossible. This suggests the moral importance of an accounting for the sum of justice undone.