Confronting Failures of Justice

Paul Robinson is one of the world’s leading criminal law scholars. He is a member of the American Law Institute and a former federal prosecutor and counsel for the US Senate Subcommittee on Criminal Laws and Procedures. A prolific writer and lecturer, Robinson has published twenty books and articles in virtually all of the top law reviews, lectured in more than 110 cities in thirty-four states and twenty-seven countries, and had his writings appear in fifteen languages. Robinson is the lead editor of Criminal Law Conversations (Oxford) and the author of Intuitions of Justice and the Utility of Desert (Oxford); Mapping American Criminal Law (Praeger); Distributive Principles of Criminal Law (Oxford); and Structure and Function in Criminal Law (Oxford). He also writes popular books for general audiences, such as Would You Convict? (NYU), Law Without Justice (Oxford), Crimes That Changed Our World (Rowman & Littlefield), Shadow Vigilantes (Prometheus), and American Criminal Law (Routledge). Robinson recently completed three criminal code reform projects in the U.S. and two modern Islamic penal codes, including one under the auspices of the U.N. Development Programme. Jeffrey Seaman is a researcher and writer on the U.S. criminal justice system and a JD student at the University of Pennsylvania. He is committed to bringing an interdisciplinary approach to the problem of criminal justice reform to make the system more just for all. Muhammad Sarahne, SJD, LLM, LLB, is an attorney in the Criminal Department of the State Attorney's Office in Israel, representing the state in criminal matters before the Israeli Supreme Court. He previously worked as a prosecutor in the Economic Crime Department and was an assistant to the Israeli Deputy Attorney General (Criminal). He is an adjunct teacher at the Law School of the Hebrew University of Jerusalem and has published a number of articles in American and British law reviews.

• AcknowledgmentsChapter 1: Getting Away with Murder and RapeA. Introduction: Failures of JusticeB. The Causes of Justice FailuresC. The Frequency and Seriousness of Justice Failures D. Case Examples and the Public Reaction to ThemE. The Costs of Justice FailuresF. Systemic Indifference to Justice FailuresG. A New Look at the Competing Interests and Imagining ReformsPart I: Criminal Liability RulesChapter 2: Legal Bars to ProsecutionA. Statutes of LimitationB. Double JeopardyC. Diplomatic ImmunityD. The Legality Principle and the Rule of Strict ConstructionChapter 3: Anti-Justice Distributive PrinciplesA. Deontological Desert as a Distributive PrincipleB. Doing Justice as the Most Effective Means of Controlling Crime: Maximizing the Criminal Law’s Moral Credibility with the CommunityC. The Problems with General Deterrence and Incapacitation of the Dangerous as Distributive PrinciplesD. Public Complaints Regarding Anti-Justice Distributive PrinciplesE. ReformsF. Recommendation: Adopt the MPC Revision that Sets Desert as the Inviolate Distributive PrinciplePart II: Limitations on Criminal InvestigationChapter 4: Investigative ErrorsA. Case Example: O. J. SimpsonB. Case Example: Kenneth “Exxon” DavisC. Competing InterestsD. The Nature and Extent of the ProblemE. Public Complaints About Investigative FailuresF. ReformsG. Recommendation: Create a National Center for Crime Investigation Effectiveness (CCIE) to Establish Best Practices and Assist Departments in Meeting Them Chapter 5: Inadequate FinancingA. IntroductionB. Competing InterestsC. The Nature and Extent of the ProblemD. Public ComplaintsE. Past Reform EffortsF. Reform PossibilitiesG. Recommendation: Create a National Center for Crime Investigation Effectiveness (CCIE) to Assist Departments in Obtaining Funding to Meet PracticesChapter 6: Legal Limitations on Police InvestigationA. Search and Seizure RulesB. Custodial Interrogation RuleChapter 7: Restraints on Use of TechnologyA. Competing InterestsB. Public Views on Investigative Use of TechnologyC. Restraints on the Use of Biometrics and Forensics (Such as DNA)D. Restraints on the Use of Surveillance Technologies (Including CCTV)E. Restraints on the Use of Data Analytics (Including Facial Recognition Software)Part III: Criminal Justice Adjudication ProceduresChapter 8: Excluding Reliable and Probative EvidenceA. Excluding Reliable Evidence to Restrain Police and Prosecutors (the Exclusionary Rule)B. Excluding Reliable Probative Evidence to Avoid “Prejudice”Chapter 9: Pretrial ProceduresA. Pretrial ReleaseB. Speedy Trial RulesChapter 10: Plea BargainingA. IntroductionB. Competing InterestsC. The Nature and Extent of the ProblemD. Public ComplaintsE. ReformsF. Recommendation: Use Consolidated Offense Drafting with Particularized Offense Grades to Reduce the Justice-Frustrating Costs of Plea BargainsChapter 11: Unchecked Judicial Sentencing DiscretionA. IntroductionB. Competing InterestsC. The Nature and Extent of the ProblemD. When Judicial Sentencing Discretion Damages the Criminal Law’s Moral Credibility: The Example of RapeE. Public Complaints About Unchecked Judicial Sentencing DiscretionF. ReformsG. Recommendation: Adopt Comprehensive Presumptive Sentencing Guidelines (as in the Federal System)Chapter 12: Early Release on Parole and Compassionate ReleaseA. Early Release on ParoleB. Compassionate ReleaseChapter 13: Executive Clemency and PardonA. IntroductionB. Competing InterestsC. The Nature and Extent of the ProblemD. Public ComplaintsE. ReformsF. Recommendation: Adopt Model Pardon Board to Reduce Clemency Abuse and Promote TransparencyPart IV: Social and Political InfluencesChapter 14: Citizen Non-CooperationA. IntroductionB. Witness IntimidationC. The Stop Snitching MovementD. Cynicism About Criminal Justice EffectivenessE. Community Upset over Police Use of Force: The False Narrative ProblemF. Recommendation: Create a Police-Community Oversight Commission that Will Help Police Earn Credibility with the Community and Promote Community Cooperation with PoliceChapter 15: Police Non-InterventionA. Competing InterestsB. Anti-Police Rhetoric and Attacks on PoliceC. Depolicing: Defunding Police and Police Exclusion ZonesD. Police Demoralization: Early Retirements and Hiring DifficultiesE. Voluntary Police Non-Intervention: The Ferguson EffectF. Reforms to Reduce Police Non-InterventionG. Recommendation: Create a Police-Community Oversight Commission that Will Earn Credibility with the PoliceChapter 16: Anti-Justice Ideological MovementsA. Decarceration, Decriminalization, and Prison Abolition MovementsB. Ideologically Motivated Nonenforcement PoliciesChapter 17: Insights, Patterns & Reform PrioritiesA. Why We Should Care About Justice Failures and Why Some Don’tB. Balancing Competing InterestsC. Reform PrioritiesAppendix: Discussion Issues NotesSelected BibliographyIndexAbout the Authors

Relying on a truly astounding number of case studies, criminological reports, reviews of federal and state laws, and opinion surveys, Confronting Failures of Justice is a mammoth yet incisive documentation of the myriad ways our legal system undermines the goal of ensuring people who commit crimes receive the punishment they deserve. This book’s thoughtful compendium of how to rectify these injustices provides policymakers with a recipe for reform that is both eminently feasible and theoretically robust.