This is the final post in a five-part series where we're guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. In the previous posts we considered the frequency of failures of justice (instances of unpunished or inadequately punished crime), their costs, and the problem of balancing competing societal interests in criminal justice policy. Identifying problems is important, and our book identifies numerous problematic areas of the justice system where serious criminals either completely escape conviction or escape what society would see as a just punishment.
However, we also offer reform ideas for what a better balance of societal interests might look like in each area of the justice system. While we describe or suggest dozens of possible reforms to reduce failures of justice, consider an excerpt from the book listing ten reforms (not by order of importance) we think policymakers should particularly consider.
[1.] Abolish the Statutes of Limitation for Serious Felonies, and for Other Felonies Restart the Limitation Clock after Any New Felony (chapter 2). As discussed in chapter 2, while statutes of limitation might have had more justification when introduced centuries ago, the reasons for their continued use are lacking, especially when they regularly produce failures of justice for serious offenses.
[2.] Adopt a Fair Import Test in Place of a Strict Construction Test, after Adopting a Modern Criminal Code Format (chapter 2). As with statutes of limitation, the rule of strict construction might have made sense back when it was first adopted, but the advent of modern criminal codes with their careful drafting and defined terms have left it with little continuing justification.
[3.] Adopt a Desert-based Distributive Principle, as per the Model Penal Code (chapter 3). Half a century ago, when the Model Penal Code was first drafted by the American Law Institute, the state of criminal law theory left it unsettled as to whether criminal law ought to be primarily aimed at doing justice—giving offenders the punishment they deserve, proportionate to the seriousness of the offense and the blameworthiness of the offender—or in the business of avoiding future crime through general deterrence or incapacitation of the dangerous, even if doing so meant violating principles of deserved punishment. But as the 2007 amendment of the Model Code illustrates, it has now become clear that abandoning desert as the guiding principle for criminal liability and punishment creates its own enormous costs to effective crime control.
