Law Without Justice by Paul Robinson and Michael Cahill.

“In Law as in life, we want people to get what they deserve. Indeed, many (probably most) people, both legal experts and ordinary citizens think this is a fundamental reason (and perhaps the reason) that we have a legal system at all: to help give people what they deserve when life has not. If one person wrongs another, the law makes the wrong-doer pay. On the other hand, if someone has done nothing wrong, we expect the law to leave that person alone, as she does not deserve to be sanctioned or punished.

This basic notion holds particularly true for criminal law, in part because the stakes are higher on all sides. When a person gets away with murder, we are outraged. Why?  Because we are concerned about the message this sends to other would-be murderers, who now think they can kill without fear? Perhaps in part, but surely our outrage is more deeply related to the particulars: this murderer has committed an evil act and deserves to be punished, yet has evaded punishment. Similarly, when we hear that an innocent person  has been incarcerated, we are outraged. Why? Because we fear that this indicates a general corruption in the system and that the government may come for us next? A little, perhaps, but surely the main reason is that we sympathize with the individual, who has not received the treatment she deserves. In both cases, we feel that justice has not been done, and this offends and angers us. Isn’t justice supposed to be the system’s goal?

Surprisingly often, it isn’t. To take just one brief example, the case of Leandro Andrade who, in November 1995 went to two K-Mart stores and stole none video-tapes worth a total of about $154 . Because he had earlier convictions for burglary, minor thefts, and drug offenses involving marijuana – though he had already served time for those offenses – Andre was sentenced under California’s ‘three strikes’ law to two consecutive sentences of twenty-five years to life, meaning he will serve a minimum of fifty years in prison for his video tape theft.  Currently, California is spending about $26,000 per year for the incarceration of Andrade and each of its other prisoners. But it is also paying another price: the price of sacrificing justice by treating minor offenses as if they were far more serious than significant, violent felonies  .  .  .”

Julio Marrero, a guard in a federal prison who had received numerous threats to his life, purchased and carried a gun under the impression that  his exemption for obtaining a special permit as a officer of the federal government was equally applicable under the laws of the State of New York, was arrested, convicted of felony possession of a firearm, fined, given a 3 year suspended sentence and thus barred from work in law enforcement or corrections.




Deviations from the norms of just desert occur frequently in respect to bright-line determinations of the immaturity ‘defense. All actors below a specific cutoff age are  conclusively presumed to be immature and are tried in juvenile court in which the normative expectations  for offenders, and the punishments handed out are lowered. Above a certain age defendants are tried as adults and not allowed  an immaturity defense. The problem is only exacerbated by the increasing trend towards lowering the age at which juveniles can be tried and punished as adults. Here, as elsewhere, flexible standards rather than bright-line rules would better serve the goal of just deserts.  Undertaking complex judgments of blameworthiness – assessing mental capacities and functioning in specific situations should not normally be abandoned simply because they are sometimes difficult.

“Strict liability’ rules in criminal courts also lead to many deviations from the principle of just deserts as in the case of a mentally retarded individual who impregnated a girl who he thought and had been told by the girl herself and several friends was sixteen years old but was actually fourteen. He received a twenty year sentence for statutory rape. Felony-murder offenses are also the subject of deviations. A teenager in Chicago fled from an officer who stopped him for ‘erratic driving”. The officer pursued the kid on foot .Running between two cars into the street during the chase the officer was struck and killed by another officer responding to his call for assistance. The suspect was apprehended, convicted of felony murder and given a life sentence.

The author gives many other examples of distortions of the just desert principle in American law enforcement and jurisprudence. A serial killer is set free because his initial arrest lack sufficient  ‘probable cause’ and evidence gathered at the time of that arrest ruled inadmissible. He goes on to kill and dismember three more victims before finally being apprehended. Clear evidence of culpability in the murder of his girlfriend shows up after a man is acquitted and is thus only convicted of perjury and serves three years in jail. A woman is brutally raped but is only able to face what happened to her, identify her attacker- who in the meantime had raped several other women, after the statue  of limitations had run out.

The author also discusses the disparities of punishments and deviations from the principle in several areas of the law, including ‘the war on drugs’, increasing criminalization of administrative rules and the prosecution of corporate misconduct. He examines the empirical evidence that is sometimes used to justify such deviations in terms of deterrence, crime prevention, ‘law and order’ or simply ‘keeping the lid’ on things in high crime areas as embodied in the rationale behind ‘broken windows’ policing. He finds this evidence to be largely inconclusive.

 Although the author recognizes that no legal system can hope to entirely eliminate deviations from the rule of just deserts, the closer a system gets to it, the greater the authority the law achieves in the eyes of the people and therefore, the more incentive it provides to obey it. Without substantive just desert, no other measures of prevention, deterrence or public safety can hope to be successful. The provision of just deserts, he argues, undertaken with a greater flexibility and painstaking adjudication than is currently allowed in the law in many States, especially in present ‘good faith’ and and broad, abstract expectations of ‘reasonable conduct’ by officers and prosecutors, would not seriously injure their capacity to investigate, apprehend and convict dangerous criminals or maintain law and order, irrespective of the inchoate fears and unfounded claims and fallacies of widespread public perceptions of the extent of crime in America today. Harsh and unfair regimes of punishment and their attendant costs could be reduced significantly. Constitutional  protections of life and liberty under the Bill of Rights need not be relaxed. They could, in fact, be  greatly enhanced.