Judging Evil: Rethinking the Law of Murder and Manslaughter

By Samuel H. Pillsbury | Go to book overview

4
Just Punishment in an
Unjust Society

Virtually every Monday in virtually every major urban area in this country, criminal courtrooms fill up with those arrested over the weekend. In the milling confusion of these gatherings, as prosecutors review police reports and defense attorneys check files and clerks shout names and judges push through the calendar, the observer gains a good look at the criminally accused. The view may surprise. Can these really be the criminals we have heard so much about—this collection of mostly young men with tired eyes, dressed in rumpled street clothes or jail outfits, bound in chains, who scan the courtroom for family, or who know better than to look? They look more downtrodden than dangerous. Often their frames and faces bear the telltale signs of drug and alcohol abuse. Sitting in the waiting room of the public defender's office or touring a city jail or state prison will only reinforce the same impression. Disproportionate to the general population, the human face of those caught up in the criminal justice system is that of a poor, ill-educated, black or Hispanic young man.1 This is justice in America? How can any legal system be just that so dramatically reflects society's social inequities? How can these persons deserve the punishment they receive?

Many criminal justice texts reprint a flow chart of the criminal justice system first created for the President's Commission on Law Enforcement and Administration of Justice in 1968.2 The chart depicts the disposition of potential and actual criminal cases in the country. It looks something like a horizonal tree; at the left are broad roots depicting the actual crimes committed; from there the number of cases dwindle according to which crimes are reported to the police, those in which arrests are made, those in which charges are filed and so on. At the right of the page the tree ends in a thin strand of cases representing defendants sentenced to prison. The chart depicts a continuous winnowing of cases. At every stage of the process many are called but few are chosen. Only a few persons who commit crimes, and

-47-

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Judging Evil: Rethinking the Law of Murder and Manslaughter
Table of contents

Table of contents

  • Judging Evil - Rethinking the Law of Murder and Manslaughter iii
  • Contents v
  • Preface the Challenge of Criminal Responsibility vii
  • Acknowledgments xiii
  • Part I - Deserved Punishment 1
  • 1: A Question of Value 3
  • 2: The Value of Choice 18
  • 3: Punishment as Defense of Value 32
  • 4: Just Punishment in an Unjust Society 47
  • 5: Moralizing the Passions of Punishment 62
  • Part II - Defining Murder and Manslaughter 77
  • 6: From Principles to Rules - An Introduction to Mens Rea 79
  • 7: The Worst Crime of All 98
  • 8: Crimes of Passion 125
  • 9: Crimes of Indifference 161
  • Appendix - Proposed Jury Instructions 189
  • Notes 197
  • Index 261
  • About the Author 264
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