Justice Undone

55 Pages Posted: 2 Jul 2020

See all articles by William S. Laufer

William S. Laufer

University of Pennsylvania - Legal Studies Department

Robert Hughes

Legal Studies and Business Ethics Department, The Wharton School

Date Written: May 26, 2020

Abstract

There is far more justice that is not served than served in our criminal justice system. Well more than half of all offending and victimization fails to make its way into the criminal justice system. An additional share of wrongdoing from initial police contact to the end of the criminal process is diverted or exits. A host of additional personal, system, and societal factors constrain the administration of justice to respond to criminal wrongs. This Article introduces the idea of justice remainders or the omission of the state’s response to crime. Justice remainders include both justified and unjustified failures to punish the guilty. The total of all justice remainders is the sum of justice undone. It is argued that the: (a) moral indignation and outrage over many types of justice remainders are simply and remarkably missing and (b) distribution of these remainders are race- and class-based.

This Article shows that theories of criminal law with significantly different assumptions and premises nevertheless support three conclusions about justice remainders. First, the state has a duty to address systematic justice remainders that involve either the failure to enforce an important criminal prohibition or a profound inequality in the effective protections of criminal law. Second, the state may be able to remedy some justice remainders with a commitment to effective and humane reforms to penal laws and practices. Finally, the state has a duty to provide public recognition of criminal wrongdoing when just punishment is impossible. This suggests the moral importance of an accounting for the sum of justice undone.

Keywords: justice, equality, criminal law, law and philosophy, punishment, criminal justice

JEL Classification: K14, K1, K42, K40

Suggested Citation

Laufer, William S. and Hughes, Robert, Justice Undone (May 26, 2020). American Criminal Law Review, Vol. 58, Available at SSRN: https://ssrn.com/abstract=3611042

William S. Laufer (Contact Author)

University of Pennsylvania - Legal Studies Department ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States
(215) 898-7693 (Phone)
(215) 573-2006 (Fax)

Robert Hughes

Legal Studies and Business Ethics Department, The Wharton School ( email )

3730 Walnut Street
Suite 600
Philadelphia, PA 19104-6365
United States

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