THINGS ARE NOT WHAT THEY SEEM - THE ONTOLOGY OF CRIMINAL JUSTICE

• NCJ Number: 58342
• Journal: University of Toledo Law Review Volume: 10 Issue: 2 Dated: (WINTER 1979) Pages: 334-369
• Author(s): J P CONRAD
• Date Published: 1979
• Length: 36 pages
• Corporate Author: University of Toledo
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE CRIMINAL JUSTICE SYSTEM OPERATES UNDER THE FAULTY ASSUMPTION THAT IT CAN AND WILL REDUCE CRIME TO A TOLERABLE LEVEL AND REHABILITATE CRIMINALS. THIS ARTICLE EXAMINES THE SOURCE AND IMPACT OF THIS BELIEF.

Abstract

THIS VISION OF WHAT THE SYSTEM SHOULD ACCOMPLISH IS CLEARLY IRRECONCILABLE WITH THE REALITY OF WHAT IS POSSIBLE, PARTICULARLY REGARDING JUSTIFICATIONS BEING ADVANCED FOR THE PUNISHMENT OF CRIMINALS. THE PRINCIPLES OF RETRIBUTION (AS BEST EXPRESSED BY HEGEL) AND PREVENTION (AS FIRST DEVELOPED BY PLATO) HAVE SERVED AS THE PRIMARY RATIONALE FOR THE SYSTEM. UP TO THE 19TH CENTURY AND WELL INTO IT, THE SEVERITY OF THE WRITTEN LAW WAS MAINTAINED ON THE UNDERSTANDING THAT ONLY ITS TERROR WOULD CONTROL THE CRIMINAL CLASSES. BENTHAM ARGUED FOR THE EXPANSION OF THIS VISION INTO A PRINCIPLED BLEND OF INTIMIDATION, INCAPACITATION AND REHABILITATION. CHOICE OF PRIORITIES HAVE VARIED, AS A REVIEW OF THE HISTORY OF AMERICAN PENOLOGY CLEARLY SHOWS. AFTER THE CIVIL WAR, THE NATIONAL PRISON ASSOCIATION ESTABLISHED THE LEGITIMACY OF REHABILITATION AS A PROPER GOAL OF THE SYSTEM. HOWEVER, THE REALITY OF THE OPERATING CONDITIONS HAS MADE THE ACHIEVEMENT OF THIS OBJECTIVE ALMOST IMPOSSIBLE. IN PART, THIS STEMS FROM THE FACT THAT THE SYSTEM HANDLES ONLY A SMALL PERCENTAGE OF CRIMINALS (ESTIMATES ARE THAT FROM 10 TO 15 PERCENT OF ALL CRIMINALS ARE IMPRISONED). THEREFORE THE SYSTEM DEPENDS ON THE INHERENTLY UNJUST SYMBOLIC PUNISHMENT OF THESE FEW PRISONERS. IT HAS FAILED TO APPRECIATE THE TRUE ROLE OF CRIME IN SOCIETY. DURKHEIM HAS ARGUED THAT CRIME MUST BE VIEWED AS AN INDICATION OF THE WELL-BEING OF A SOCIETY. OUR SOARING CRIME RATES THEREFORE INDICATE THAT MAJOR EFFORTS ARE NEEDED TO ALLEVIATE THE UNDERLYING SOCIAL AND ECONOMIC CAUSES OF CRIME. HOWEVER, OUR CRIMINAL JUSTICE SYSTEM CAN PLAY AN IMPORTANT ROLE IN PRESERVING THE SENSE OF SOCIAL COHESION AND SECURITY NEEDED TO ACHIEVE SOCIAL JUSTICE. FOOTNOTES ARE PROVIDED. (KCP)