On Our Dysfunctional Criminal Justice System

monopoly-go to jail

Criminal law and criminal justice in the United States may reasonably be said to be in a state of crisis in many different aspects: the increasing amount of criminal law, the kinds of things it tries to address, its enforcement, the level of criminal activity, and punishment.

The sub-title of a book published by the Cato Institute some years ago underscores the reality of the explosion of criminal law in recent decades: The Criminalization of Just about Everything (the title was a not-so-humorous take-off from the old “Monopoly” game: Go Directly to Jail). What were formerly merely torts are now criminalized. The federal criminal code has ballooned; few things used to be federal offenses, now many are. Things that a few decades ago no one would have dreamed would bring the heavy hand of the law on someone result in criminal charges (like the case of the West Virginia middle-school student recently jailed for “disturbing the educational process” for arguing with his teacher about whether he could wear his pro-NRA tee-shirt). An increasing amount of statutory law—both in the criminal and non-criminal categories—is vague and unclear. Among the best examples are the child abuse and neglect laws, triggered by the passage of the federal Mondale Act forty years ago. The result has been a child protective system (CPS) spending most of its time investigating innocent childrearing behaviors and a veritable national crisis of false reporting (80% or so of the reports are unfounded). Many federal criminal law provisions are now contained within the mountain of regulatory law—taking up somewhere around 75,000 pages in the Federal Register—some of which is contradictory, unclear, or unworkable. As federal appellate judge Edith Jones stated several years ago, federal agencies “have made the law so complicated that it is difficult to decipher and often contradicts itself.”

The effect of all this is to make a mockery of law and to encourage a lack of respect for it. It also makes it difficult to take seriously the old standard—hearkening back to Roman law—that “ignorance of the law is no excuse.” How many of us can reasonably work our way through 75,000 pages (and that’s just one type of current law), even if we could decipher it? It also encourages arbitrary government action. The obvious implication of such developments is the weakening of the rule of law, which was a bedrock principle of the American Founding to help protect against just such arbitrariness and insure liberty. Catholic social teaching also stresses the essentiality of the rule of law.

It is not surprising that the amount of positive law—the law of the state—has mushroomed. As Russell Kirk said, “order is the first need of all”; without it life becomes intolerable, and so men will give up almost anything else to get it. At a time when most of the other traditional means of securing order—religion, the family, sound morality, and strong community life—have in large measure broken down, all that seems to be left is the coercive power of the state as expressed through its laws. Externally imposed order intensifies when internal order—which makes self-control possible—weakens. Still, this does not completely explain our current situation. It is also a result of an ideological atmosphere that increasingly sees the state as the all-purpose solution—this probably reflects the influence of a vague, vulgarized Marxism—and simply of a certain way of thinking that increasingly took hold in America as the twentieth century progressed (“there oughta be a law”).

Not only has the breakdown of internal control meant more external control, but it has led, of course, to more criminality in the first place—and increasingly degraded and brutal kinds of it.

Other troubling developments concern criminal law enforcement. The tendency, when confronted with more and more criminal activity, is to lower the standards of proper conduct expected of those in the criminal justice system and to allow traditional liberties to be more and more compromised. We think that we have to make their jobs easier for the sake of our own protection. So, we witness such things as: astoundingly invasive full-body scans at airports; security cameras watching our every move in many parts of our cities; the storing of massive amounts of data on vast numbers of our citizens and routine criminal background checks for an increasing array of activities; an explosion of plea-bargaining so police and prosecutors don’t have to go to the trouble of building cases and the criminally accused don’t get their Sixth Amendment right to a trial (over 90% of criminal cases nationally are settled by plea bargains); the routine keeping of arrest records (even when there is no conviction or if an arrest was illegal); the erosion of traditional common law requirements such as mens rea (which holds that there must be criminal intent for there to be a crime); the routine use of various kinds of sting operations, even though many are virtually entrapment; police who seem so weak on knowledge of basic citizen liberties that they see no problem doing things like providing back-up for CPS operatives so they can force their way into the homes of innocent, hapless families to interrogate children and find reasons to accuse parents; and, as became clear in the recent Boston Marathon bombing case, in the name of combating terrorism we will even go to the point of letting police and investigators stretch Miranda rights requirements and impose lockdowns of whole communities to pursue a single suspect (which may become a precedent for future cases that have nothing to do with terrorism). At the lower end of the offense scale, we witness not just police speed traps but increasingly pervasive traffic cameras whose purpose appears to be the mere raising of revenue (what the “Men of ‘76” might have called “eating out our substance”). We could go on and on about abuses in American criminal justice today.

Once again, a lot of this hardly encourages respect for the rule of law, nor does it seem fitting for a free people or even respectful of human dignity. Does a pervasive “security state” promote human dignity? For that matter, does it even truly insure security? In recent years, fighting terrorism has been a major justification for this, but in the cases of 9/11, the 2009 Christmas Day airline bomber, and apparently also in the Boston Marathon bombing, bureaucratic bungling by the very agencies that have fashioned such security regimens helped cause the problems.

On the punishment side, we increasingly witness an almost reflexive tendency to imprison offenders, warehousing, and high rates of recidivism. The purpose of imprisonment—and more broadly of punishment—seems to be obscured. Should most of those guilty of white-collar crimes be imprisoned? How about those convicted of political crimes, such as campaign-finance violations or influence-peddling? Might long-term civil fines, removal from prominent corporate positions, and restitution—which victims of economic and property crimes seldom receive—be better for the former, and a permanent ban from public office and public disgrace for the latter? Shouldn’t prisons perhaps be primarily for people who pose a physical danger to others or the community? In light of today’s prison conditions, is it just to spend time behind bars and be exposed to the brutal possibility of physical and sexual assault? Also, what about the fact that it’s said that our prisons today are full of mentally ill people? Do we perhaps have to reflect more on what to do differently about offenders whose mental illness or psychiatric problems were major factors in their crimes? Do we not have to ask if we are doing something wrong when we have the largest prison population in the world? Illicit drug use is also in the equation, since it is tied to so many crimes today and has been a major factor ballooning the prison population. While the libertarians’ solution of legalizing these drugs would be a disaster, it seems clear that how to deal with this requires renewed reflection and debate.

Also shouldn’t the findings of the various “Innocence Projects” about the numbers of inmates on death row because they were wrongly prosecuted and convicted give us pause? Don’t such problems require serious questioning?

Traditionally, punishment has had four purposes: restoring justice, retribution, deterrence, and rehabilitation. A sound ethicist would say that restoring justice is of overriding importance, but it seems as if deterrence has become overriding (even though our crime statistics signal that this is not working). One wonders if we made justice the central concern, instead of the more utilitarian matter of deterrence, we would succeed better at both. The recidivism rate indicates that rehabilitation is mostly failing, and while pushed in the 1960s it has little popular appeal today. Should we be so surprised that rehabilitation has been problematical when our cultural weltanschauung gives such little attention to personal moral formation and, indeed, sees the individual as his own moral arbiter?

In case anyone thinks that concern for rehabilitating criminals instead of simply imposing harsh punishments is some “bleeding-heart” liberal concoction, he should consider that the great Father of the Church, St. Augustine, exhorted clemency for offenders so they might have the opportunity to correct themselves. The famous pre-Vatican II American theologian, Fr. Francis J. Connell, C.SS.R., wrote that a Catholic judge should take account of the troubled backgrounds of offenders and avoid “the crushing of aspirations toward improvement by excessive rigor.” The Church’s concern about human dignity and human rights hardly permits a Christian to cast a blind eye to the conditions inside many prisons. Also, a Christian concern for our fellow man and the common good cannot help but trouble us about the disproportionate percentage of criminal behavior among certain demographic groups in the country.

This is just a small taste of the problem, and a few of the many questions that must be pondered. When it comes to something like criminal justice, Christians can easily slip into assessments from the lens of the political left or political right, or just simply embrace what seems to be so. This is a topic in the United States today that demands a serious analysis from a distinctly Christian standpoint (which puts human dignity, the true nature of man, sound morality, and simple fair play at the forefront). That is also a standpoint that is in line with American legal, social, and cultural traditions, which were so substantially forged by Christian influence.

Editor’s note: Many of the points in this column were explored in more depth in the author’s article, “Rights, Liberties, the Common Good, and the Transformation of American Law in Recent Decades: Has the Legal Profession Failed in Its Ethical Obligation to Improve the Legal System?” in the Journal of Catholic Legal Studies,  (2008).

Stephen M. Krason

By

Stephen M. Krason's "Neither Left nor Right, but Catholic" column appears monthly (sometimes bi-monthly) in Crisis Magazine. He is Professor of Political Science and Legal Studies and associate director of the Veritas Center for Ethics in Public Life at Franciscan University of Steubenville and co-founder and president of the Society of Catholic Social Scientists. His is the author of several books including The Transformation of the American Democratic Republic (Transaction Publishers, 2012), and most recently an edited volume entitled, Child Abuse, Family Rights, and the Child Protective System (Scarecrow Press, 2013).

  • tedseeber

    I’m normally against inserting libertarian attitudes into Catholicism- but that isn’t what this is. This is about describing a system of justice tempered with mercy- God’s method, not man’s.

  • crakpot

    First principles, the self-evident truths Jefferson wrote down, say that there are two conditions for the just use of government power: 1) That it helps secure our God-given rights of life, liberty, and pursuit of happiness, and 2) That the power has been constitutionally consented to by at least a supermajority of those truly governed by it.
    We should insist on candidates whose “day one” agenda includes abdicating all other powers previously taken and dismantling the apparatus by which they are enforced.

    Also, before they would give their positive consent, the States insisted on ten negative prohibitions, the Bill of Rights. Since these apply to criminal and common law, the loophole has been to escape these prohibitions by using “regulation.”
    We should bring the protections of our Bill of Rights to bear against the police power of regulation.

  • MarkRutledge

    Outstanding and compelling article, Mr. Krason. However, there is another critical point regarding our criminal justice system that needs exploration. The first duty of the criminal justice system is arguably the protection of law-abiding citizens. In this the system fails miserably. Career criminals are regularly cycled back out on the street to claim more victims, yet the judges, lawmakers, parole boards, or whomever is responsible never seem to feel the heat from the public which must bear this burden.

    • tom

      Even the “new” Immigration bill allows an “illegal” to have 3 DWI’s and become an American. That must be the loophole for Uncle Omar Obama.

  • John O’Neill

    We cannot ignore the moral quandary that we enter when we participate in the American Justice System. This is the very same system that has enabled and supported the commission of over fifty million abortions; i.e. homicides. How can a Catholic in conscience cooperate with this diabolic American system. I do not wish to cooperate or participate as a member of a jury or other in this blood soaked system. Can one sanguinely sit on a jury deliberating a charge of theft against a teenager who stole a car when those who control the system are funding abortions and drone executions? Anti Catholic bigots in the 19th century America declared that one could not be a good American and a Catholic at the same time. Maybe they were right all along, I certainly do not want to be counted as an American in the present system.

    • MarkRutledge

      I disagree, we are duty-bound to participate. As then Cardinal Ratzinger said “By fulfilling their civic duties, guided by a Christian conscience, in conformity with its values, the lay faithful exercise their proper task of infusing the temporal order with Christian values[...]” – The Participation of Catholics in Political Life.

      John, if we do not participate evil prevails all the more. Let us be the Church Militant.

      • tom

        There’s always jury nullification for Catholics who feel the state is usurping basic human rights….like Life. A good example of nullification was the black jury in the O.J. Simpson case refusing to find he did anything wrong.

      • John O’Neill

        “evil prevails”. Sorry Mark that horse has already left the barn what we have now is pure evil. We cannot render unto Caesar the things that are God’s; especially when Caesar is working very hard to establish the kingdom of Satan in the American heart. Many Catholics and Christians in Nazi Germany paid the ultimate price rather than partake in that horror.

  • Will Bloomfield

    Two other areas of injustice to consider are: (1) mandatory minimum sentences, and (2) excessive maximum penalties. Mandatory minimum sentences were a reaction to perceived lenient judicial sentencing; but mandatory sentences prevent judges from considering the individual facts and circumstances involving the crime or the defendant. Federal drug, firearm, and child pornography laws include severe mandatory sentences that can result in injustice. Excessive maximum penalties can grossly tip the bargaining power in favor of the prosecutor. Even minor offenses can have maximum penalties of multiple years in jail. Even if one is innocent, who wants to risk such possible exposure at trial?

  • hombre111

    Thought provoking and worth reading. But along the way, I kept remembering that the conservatives are the ones who demand longer jail terms and the criminilizing of things like smoking marijuana. Some huge proportion of the people in prison are there for non-violent drug offenses. In the recent Boston Marathon bombing, the Repubs are the ones who are saying the FBI was not intrusive enough.

  • http://www.facebook.com/people/Tony-Esolen/1184164082 Tony Esolen

    The evils of Child Protective Services seem to know no end. Their practices show what is wrong with the whole criminal system. The fact is, we know what kinds of families children thrive in; but CPS people will shy away from the rough sections of the city, and the single-mother with boyfriend live-in, because they themselves are afraid of those places, or are secretly in favor of such arrangements, or both. A police state, paradoxically, can get along very nicely with a high crime state, because the police will simply go after the safe ordinary people, the low hanging fruit. Make the police force feminine and you’ll see the problem worsening. Need an arrest or two? Go after ordinary people.

    • Bono95

      Totally, Mr. Esolen. C.S. Lewis illustrates your point beautifully (if such horror can ever be beautiful in any aspect) in “That Hideous Strength”, the final book in his Space Triology.

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