It’s Time to Confront Failures of Justice (Part IV)
This is the fourth in a five-part series where we’re guest blogging about our new book Confronting Failures of Justice: Getting Away With Murder and Rape, available here. In the previous posts we examined the frequency of failures of justice and their costs. Good public policy (including legal rules) needs to balance competing societal interests, and this is particularly true in the realm of criminal justice where lives are on the line. But as we argue in our book, many aspects of the legal system reflect an archaic or miscalculated balance of interests that needlessly frustrates justice.
For example, do statutes of limitation for rape make sense in a world with DNA evidence and untested rape kits? Should a serial killer really escape justice because a court suppressed all the evidence after concluding a traffic stop went on too long? Should courts even be the ones making such a rule?
One reason why many criminal justice rules are poorly balanced from the perspective of doing justice is that there was no attempt to make a nuanced calculation of societal costs and benefits—merely an effort by judges to create or apply a rigid rule. Indeed, a theme that emerges from studying the causes of failures of justice in the legal system is that judge-made criminal justice policy is rarely well-made criminal justice policy. Here are some excerpts from the book considering the question of balancing societal interests and who should do that balancing.
There are almost always some legitimate interests that can be identified in support of justice-frustrating rules or practices. Thus, rational policymaking cannot simply demand exclusive focus on doing justice but rather must balance competing societal interests. That said, the analyses in previous chapters suggest that the balance of societal interests in current rules and practices is commonly skewed and much in need of rational and thoughtful rebalancing. Even the interpretation of constitutional rules represents a balancing of interests—by judges—that is sometimes explicit and sometimes implicit. A proper balancing of interests is likely to produce more compromise policies than the partisans of a particular issue might like. On the issue of privacy, for example, a proper balancing of interests reflecting society’s preferences would likely satisfy neither extreme privacy advocates nor extreme justice proponents.
The impo
Article from Reason.com
The Reason Magazine website is a go-to destination for libertarians seeking cogent analysis, investigative reporting, and thought-provoking commentary. Championing the principles of individual freedom, limited government, and free markets, the site offers a diverse range of articles, videos, and podcasts that challenge conventional wisdom and advocate for libertarian solutions. Whether you’re interested in politics, culture, or technology, Reason provides a unique lens that prioritizes liberty and rational discourse. It’s an essential resource for those who value critical thinking and nuanced debate in the pursuit of a freer society.