Although we pretend otherwise, much of what we do in the law is guesswork.
In fact, much of the so-called wisdom that has been handed down to us about the workings of the legal system, and the criminal process in particular, has now been undermined by experience, legal scholarship and common sense. What I have listed below are some of the reasons to doubt that our criminal justice system is fundamentally just.
Here are just a few examples:
But crime rates have been dropping steadily since the 1990s, and not merely in the United States but throughout the industrialized world. Our intuition about harsh sentences deterring crime may thus be misguided. We may be spending scarce taxpayer dollars maintaining the largest prison population in the industrialized world, shattering countless lives and families, for no good reason.
This article is an edited excerpt of Alex Kozinski’s earlier article “Criminal Law 2.0,” which was published at 44 Georgetown Law Journal Annual Review of Criminal Procedure, at iii (2015).