Rights and Wrongs by William C. Heffernan

Author:William C. Heffernan
Language: eng
Format: epub
ISBN: 9783030127824
Publisher: Springer International Publishing

The Possibility of Taming State Power

Because criminal justice institutions emerged gradually, it’s impossible to point to a single event in which their presuppositions were clearly articulated. It’s for this reason that we’ve used a model to make sense of an overabundance of factual detail. Three presuppositions are essential to this model. The first is that each individual has a right to security of his or her person. The second is that acts which culpably interfere with the social order are eligible for punishment. And the third is that government may use its coercive power to punish such acts. One cannot make sense of modern criminal justice without taking seriously each of the points just made.

The third feature of the criminal justice model—government’s surrogacy role—can be analyzed in its “pure” and “diluted” form. According to the former, malicious interference with the security rights of members of the public is exclusively a state concern. Police investigate claims of wrongdoing. Prosecutors are not influenced by complainants in determining whether to bring charges. Other government officials settle on verdicts of guilt or innocence. And corrections officers administer punishment. All this is done in the name of the public interest (thus the importance of the claim that state officials act impartially as surrogates of the public), but it’s done solely through reliance on officials’ exercise of discretion.

It’s because criminal justice tends to, but doesn’t completely, conform to this model that we also have to consider diluted versions of the criminal justice model. Private parties sometimes conduct investigations on their own. They occasionally participate in prosecutions. They often serve as fact-finders (i.e., jurors) in delivering verdicts of guilt or innocence. As for the administration of legally mandated punishment, though, this indeed is something carried out exclusively by government officials.

On balance, then, modern criminal justice bears a substantial (though not complete) resemblance to the pure criminal justice model. Because there is a good reason to suppose that a strong government contributes better to the protection of public security than the weak governments characteristic of the early Middle Ages, the rise of state can be said to have contributed to communal safety. Moreover, because the severity of punishment has been reduced over the last two hundred years, there is also good reason to say that the criminal justice is more closely associated with justice than the retaliatory model of grievance-redress.

But even if it’s granted that the criminal justice model has improved on the past, one has to add that further improvement is possible. Indeed, the ideas that inform Montesquieu’s and Beccaria’s comments on the law—the importance of lenity in punishment, the indispensability of a norm of equality before the law, and above all the minimization of degradation when imposing sanctions—are core components of modern efforts to humanize criminal justice, so much so that modern movements can be said to have inherited not merely the sense of urgency felt by eighteenth-century reformers but their agendas as well. The tragedy of course is that the urgency remains relevant. Beccaria’s punish

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