Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve PAUL H. ROBINSON MICHAEL T. CAHILL OXFORD UNIVERSITY PRESS LAW WITHOUT JUSTICE This page intentionally left blank LAW WITHOUT JUSTICE Why Criminal Law Doesn’t Give People What They Deserve PAUL H. ROBINSON AND MICHAEL T. CAHILL 1 2006 1 Oxford University Press, Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2006 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 www.oup.com Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Cataloging-in-Publication Data Robinson, Paul H., 1948– Law without justice : why criminal law doesn’t give people what they deserve / Paul H. Robinson, Michael T. Cahill. p. cm. Includes bibliographical references. ISBN-13 978-0-19-516015-4 ISBN 0-19-516015-0 1. Criminal justice, Administration of—United States. 2. Judicial error—United States. 3. Law reform—United States. I. Cahill, Michael T. II. Title. KF9223.R62 2005 345.73—dc22 2005004637 987654321 Printed in the United States of America on acid-free paper To Atticus Charles, Harper Kane, Ian McAlpine, and Sarah McAlpine and To Patricia and Lee Cahill This page intentionally left blank acknowledgments Paul Robinson thanks the participants of faculty workshops at Northwest- ern University School of Law and University of Minnesota Law School, and the Fordham University School of Law Advanced Criminal Law Seminar. The first presentation of these materials was as the Sackler Professorship Lecture at Tel Aviv University in December 2000. Research into the case facts and the collection of the many photographs was done through the unstint- ing efforts of several generations of research assistants, including, most ably, Michael Areinoff, Joseph Wheatley, Lindsay Suttenberg, and Steven Valdes, of the University of Pennsylvania Law School, and Alex Paul, Megan Bell, and Stephen Haedicke of the Northwestern University School of Law. Michael Cahill thanks Brooklyn Law School and Dean Joan Wexler for supporting this project through the Dean’s Summer Research Stipend pro- gram. He joins Paul in thanking the law faculties at Northwestern, Univer- sity of Minnesota, and Fordham—at Fordham, Deborah Denno specifically— for offering the opportunity to discuss this project and for their feedback. Similar thanks are due to Chicago-Kent College of Law and Florida State University College of Law, and to the faculty participants in workshops at those schools. Various colleagues at Brooklyn and at Chicago-Kent provided useful comments about the project, either in conversation or after reading parts of the manuscript. Susan Herman in particular offered valuable per- spective regarding materials in chapter 7. Larry Heuer of the Columbia Uni- versity psychology department offered very helpful information about the social-science literature and pointed to fruitful research avenues. At Brook- lyn Law School, Mark Ellis (class of 2005), Christopher Prior (class of 2007), and David Kim, Ben Wass, and Barak Wrobel (all of the class of 2006) pro- vided capable research assistance. The authors also received helpful comments from three anonymous re- viewers arranged by Oxford University Press. At OUP, Dedi Felman and Michele Bové provided excellent editorial assistance and expertly prepared the book for publication. viii acknowledgments contents Introduction 3 Objectives and Organization 6 The Relevance of the Project 10 Chapter 1: Doing Justice and the Distractions from It 13 Why Focus on Doing Justice? 15 A Further Word on What We Mean by “Doing Justice” 18 The Utility of Desert: The Practical Costs of Deviations from Doing Justice 21 PART I: PROMOTING JUSTICE IN A COMPLEX WORLD Chapter 2: Fear of Manipulation and Abuse 27 Is a Federal Prison Guard a “Peace Officer”? 28 Rejecting a Defense for Reasonable Mistake of Law (or for Necessity or Immaturity) 31 “Whoosh, Whoosh, Push” 35 Improperly Narrowing or Rejecting Legitimate Excuses 41 Sodomized and Taunted, the Pot Boils Over 44 Relying upon a Purely Objective Standard 46 Preventing Over-Individualization of an Objective Standard 49 [...]... been a tragic error in implementing the law, but because the law actually demands this result In these cases, there is a visible gap between the law and justice a gap, moreover, that has been created by the law itself, deliberately and with full awareness of the failure of justice or the injustice that will result Given our general and deep commitment to doing justice, such cases seem not just odd or... Why would the criminal law deliberately sacrifice justice? Why would there be rules designed to give people something other than what they deserve? This book tries to answer those questions We detail the various legal rules that operate to inhibit, rather than advance, the goal of doing justice, 6 law without justice and we give specific, real-life examples of the failures of justice that result from... so contrary to our sense of what justice demands? Let us be clear about what we mean by justice in this context We believe that criminal law should seek to give defendants the amount of punishment they deserve—no more and no less We suspect that most people would W 13 14 law without justice agree with this principle In this book, we list and explain various criminal law rules that fail to uphold that... criminal -law doctrine and the way those values are instantiated into doctrines of all sorts Identifying and exploring those general undercurrents, their relation to each other, and the means of their implementation should be relevant to anyone interested in the criminal -justice system, regardless of priorities We know of no other work that takes on the task of identifying and critiquing the criminal -law doctrines... Regulatory Violations 218 Controlling Police and Prosecutor Misconduct without Letting the Criminal Go Free 222 Distinguishing Dangerousness from Blameworthiness 225 Conclusion: Doing Justice in a Complex World Notes 233 Index 313 229 xi 183 This page intentionally left blank LAW WITHOUT JUSTICE This page intentionally left blank introduction n law as in life, we want people to get what they deserve Indeed,... desert goal, the overall contours of criminal -law doctrine make clear that the commonly shared intuition is essentially accurate as a Doing Justice and the Distractions from It 17 descriptive matter That is, criminal law does typically try to “do justice, ” just as people want it to do As a general matter, and across cultures, the rules imposed by criminal -law regimes tend to reflect what one would expect... for example, over achieving justice have 18 law without justice been sloppy in their own analysis of how to deter crime In other words, the system’s willingness to sacrifice justice also has dramatic consequences even for, and perhaps particularly for, its ability to reduce crime We have no desire, then, to deprecate (or at least depreciate) the utilitarian goals of criminal law nor to trivialize the... the power of the intertwined forces of social 22 law without justice and individual moral control The law is not extrinsic or irrelevant to these social and personal forces Criminal law, in particular, plays a central role in creating and maintaining the social consensus necessary for sustaining moral norms In a society as diverse as ours, the criminal law may be the only society-wide mechanism that... a crime Or what if there were a law that punished people as criminals, perhaps even sending them to prison, when they were known to be blameless? Again, not because of some tragic mistake or faulty perception of the facts, but because the law required us to punish someone we all agree is without fault Both of these kinds of laws exist In fact, there are numerous such laws They are the subject of this... deviations that is so destructive to the criminal law s moral authority with the community We seek to make clear the costs of eroding that authority and to reverse the counterproductive current tendency to ignore its force 8 law without justice Categorizing Deviations and Critiquing Rationales Our project is more than a discussion and critique of specific doctrines, however We seek not just to identify . Law Without Justice: Why Criminal Law Doesn’t Give People What They Deserve PAUL H. ROBINSON MICHAEL T. CAHILL OXFORD UNIVERSITY PRESS LAW WITHOUT JUSTICE This. organization. 6 law without justice Identifying Deviations We set our first task as simply pointing out just how often criminal law de- liberately sacrifices justice.