Justice Undone

Published date01 January 2021
Date01 January 2021
JUSTICE UNDONE
William S. Laufer* and Robert C. Hughes**
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 ini-
tial police contact to the end of the criminal process is diverted or exits. A host of
additional personal, systemic, and societal factors constrain the administration
of justice to respond to criminal wrongs. This Article introduces the idea of jus-
tice remainders, or the omission of the state’s response to crime. Justice remain-
ders 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 moral
indignation and outrage over many types of justice remainders are simply and
remarkably missing. Our collective response to sexual assaults, the most under-
reported of all serious criminal offenses, reveals the importance of formal and
informal recognition of victims, the community affected by the wrongdoing, and
the state.
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.
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
I. UNRIGHTED WRONGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
† Our thanks to Lawrence Sherman, Claire Finkelstein, Paul H. Robinson, Richard Berk, Vic Khanna, Sally
Simpson, Eric Orts, Amy Sepinwall, Charles Loeff‌ler, Mihailis Diamantis, Will Thomas, Leigh Anenson,
Amanda Shanor, Susana Aires de Sousa, Danielle M. Dorn, Mary Brewster, Nicola Selvaggi, Ruth Moyer, Matt
Caulf‌ield, Kyle Grigel, Yannig Luthra, and Craig Agule for comments on earlier versions of this Article. © 2021,
William S. Laufer and Robert C. Hughes.
* Julian Aresty Professor, Professor of Legal Studies and Business Ethics, Sociology, and Criminology, The
Wharton School, University of Pennsylvania.
** Assistant Professor, Legal Studies and Business Ethics, The Wharton School, University of Pennsylvania.
155
II. THE MOST UNDERREPORTED VIOLENT CRIME: SEXUAL ASSAULT AS
JUSTICE REMAINDERS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
III. THE MORAL URGENCY OF REMAINDERS . . . . . . . . . . . . . . . . . . . . . . . 174
A. Moral Education and Expressivist Theories . . . . . . . . . . . . . . 176
B. Retributive Theories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
C. Non-Utilitarian Deterrence Theories . . . . . . . . . . . . . . . . . . . 186
D. Race and Remainders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191
IV. RESPONDING TO JUSTICE REMAINDERS IN A FLAWED SYSTEM . . . . . . . . . 193
A. Remainders and Criminal Justice Reform . . . . . . . . . . . . . . . . 194
B. Expressing Regret for Justice Remainders . . . . . . . . . . . . . . . 198
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
INTRODUCTION
Generations of victims live among us, many of whom will never have the crimes
committed against them known by others. So many of us live in silence as victims
ourselves.
1
The silence on crimes never recognized is the sound of justice undone.
This Article calls for a long overdue validation of this silence—a consideration of
justice that is not served, and of victimization that is never formally recognized,
ratif‌ied, and made right by the state.
2
Recognition, ratif‌ication, and justice lay dor-
mant for many years, while the most persuasive legal scholarship about criminal
justice wrestled with every other kind of injustice: the many abhorrent miscar-
riages of justice; the many errors in the criminal process; and the precise amount of
criminal law necessary to fairly and eff‌iciently administer justice.
3
The notion of
“doing justice” has long replaced any consideration of justice that is not done—
1. See, e.g., Tom Lininger, The Sound of Silence: Holding Batterers Accountable for Silencing Their Victims,
87 TEX. L. REV. 857, 869 (2009); Aliraza Javaid, Male Rape, Stereotypes, and Unmet Needs: Hindering
Recovery, Perpetuating Silence, 3 VIOLENCE & GENDER 7, 10 (2016) (suffering in silence to prevent the stigma
associated with rape); Kimberly D. Bailey, The Aftermath of Crawford and Davis: Deconstructing the Sound of
Silence, 2009 BYU L. REV. 1, 5 (2009) (asking if victimless prosecutions encourage the systematic silencing and
disempowerment of women); PATRIZIA ROMITO, A DEAFENING SILENCE: HIDDEN VIOLENCE AGAINST WOMEN
AND CHILDREN 7 (Janet Eastwood trans., 2008) (exploring the ways in which violence is intentionally
subordinated and silenced).
2. Notably, this Article is a call for greater recognition, accountability, and justice for those who suffer
wrongs in the absence of recognition by the state, not a plea for greater exercise of victim control over the legal
system or a general call for victim rights in the context of the victims’ rights movement. For a profound critique
of the limits of the crime victim’s movement, see Nils Christie, Victim Movements at a Crossroad, 12
PUNISHMENT & SOCY 115, 118 (2010), and FRANK WEED, CERTAINTY OF JUSTICE: REFORM IN THE CRIME
VICTIM MOVEMENT 143–45 (1995), and compare with Lynn Jones, Victims Movement, in THE ENCYCLOPEDIA OF
WOMEN AND CRIME 1087–88 (Frances P. Bernat & Kelly Frailing eds., 2019).
3. See generally PAUL H. ROBINSON & MICHAEL T. CAHILL, LAW WITHOUT JUSTICE: WHY CRIMINAL LAW
DOES NOT GIVE PEOPLE WHAT THEY DESERVE (2006) (offering a compelling account of violations of desert in
the criminal justice system, and how at times justice is deliberately compromised by practical constraints and
competing interests in the administration of criminal law); PAUL H. ROBINSON, DISTRIBUTIVE PRINCIPLES OF
CRIMINAL LAW: WHO SHOULD BE PUNISHED HOW MUCH (2008); BRIAN FORST, ERRORS OF JUSTICE: NATURE,
SOURCES, AND REMEDIES (2004); DOUGLAS HUSAK, OVERCRIMINALIZATION: THE LIMITS OF THE CRIMINAL LAW
(2008).
156 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:155
even though the scientif‌ic study of crime and its perennial search for better meas-
ures of crime and criminality suggest a clear path toward a public accounting of
justice undone.
4
More recent iterations of victimization surveys reveal what was once a fanciful
dream: valid and reliable estimates of the difference between all crime that is com-
mitted and off‌icially recorded crime, i.e., the “dark f‌igure” of crime.
5
The dark f‌ig-
ure makes plain that there is far more justice that is not served than is served in our
criminal justice system. Think about reporting failures by crime victims, lack of
victim cooperation, millions of unserved felony warrants, lost prosecutions due to
the exclusionary rule, all unsolved “cold” cases, and modest clearance rates of
crimes known to the police. Consider the attrition from discretionary law enforce-
ment, routine prosecutorial declinations, plea bargaining, and lost cases due to leg-
islative changes in discovery requirements and bail reform.
6
Ref‌lect on the toll that
our cherished standards and burden of proof takes on the success of the state’s
case. It is far from surprising that criminals regularly defy detection, apprehension,
adjudication, and, ultimately, proportional punishment.
What is missed by the formalities of the criminal process, consistently more
than half of all offending and victimization, we call remainders of justice.
7
Justice
4. See, e.g., Robert Shoemaker & Richard Ward, Understanding the Criminal: Record-Keeping, Statistics and
the Early History of Criminology in England, 57 BRIT. J. CRIMINOLOGY 1442, 1443–44 (2017) (outlining the
origins of quantitative inquiry in crime); Peter Lejins, Uniform Crime Reports, 64 MICH. L. REV. 1011, 1011
(1966) (discussing the importance of national crime statistics); Stanton Wheeler, Criminal Statistics: A
Reformulation of the Problem, 58 J. CRIM. L., CRIMINOLOGY & POLICE SCI. 317, 317–18 (1967) (reviewing the
promise of criminal statistics). For a window into more recent discussions, see HANDBOOK OF QUANTITATIVE
CRIMINOLOGY (Alex J. Piquero & David Weisburd eds., 2010).
5. See, for example, innovations such as the Cambridge Crime Harm Index (CHI), Lawrence Sherman, Peter
William Neyroud & Eleanor Neyroud, The Cambridge Crime Harm Index: Measuring Total Harm from Crime
Based on Sentencing Guidelines, 10 POLICING 171 (2016). For earlier work on non-reporting, see Wesley G.
Skogan, Dimensions of the Dark Figure of Unreported Crime, 23 CRIME & DELINQ. 41 (1977); Wesley G.
Skogan, The National Crime Survey Redesign, 54 PUB. OP. Q. 256, 263 (1990); Anne L. Schneider,
Methodological Problems in Victim Surveys and Their Implications for Research in Victimology, 72 J. CRIM. L.
& CRIMINOLOGY 818, 818 (1981); Albert D. Biderman & Albert J. Reiss, On Exploring the ‘Dark Figure’ of
Crime, 374 ANNALS AM. ACAD. POL. & SOC. SCI. 1 (1967) (exploring the subtle meanings of the difference
between off‌icial police reports and victim survey data, or the “dark f‌igure” of crime); see also Thorsten Sellin,
The Signif‌icance of Records of Crime, 67 L. Q. 489, 491 (1951). Adolphe Quetelet is often credited with f‌irst
raising the non-reporting problem. See ADOLPHE QUETELET, RESEARCH ON THE PROPENSITY FOR CRIME AT
DIFFERENT AGES 17 (Anderson Publ’g Co., 1984) (1833) (bemoaning the gap in offenses “known and
adjudicated” and those offenses actually committed).
6. See, e.g., James Garofalo, Police, Prosecutors, and Felony Case Attrition, 19 J. CRIM. JUST. 439, 440
(1991); Marianne Hester, Making it Through the Criminal Justice System: Attrition and Domestic Violence, 5
SOC. POLY & SOCY 79, 83–4 (2005); S. Caroline Taylor & Leigh Gassner, Stemming the Flow: Challenges for
Policing Adult Sexual Assault With Regard to Attrition Rates and Under-Reporting of Sexual Offences, 11
POLICE PRAC. & RSCH. 240, 240 (2010); Rodney F. Kingsnorth, Randall C. MacIntosh, & Sandra Sutherland,
Criminal Charge or Probation Violation? Prosecutorial Discretion and Implications for Research in Criminal
Court Processing, 40 CRIMINOLOGY 553 (2002) (highlighting prosecutorial discretion in pursuing different
avenues for domestic violence cases).
7. Our notion of remainders of justice runs parallel, at times, with Robinson and Cahill’s construct of
deviations from desert or doing justice, supra note 3.
2020] JUSTICE UNDONE 157

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