Dispensing with justice

In Getting Away with Murder, Susan Estrich offers a liberal perspective on the shortcomings of the American criminal justice system, though one that embodies the pragmatic political outlook gained in her former job as campaign manager for Michael Dukakis. Her topics are many, taking in the criminal law, the jury, sentencing and the role of lawyers. But she links them with a single theme: political demands, she argues, are eroding criminal justice.

These demands take various forms, from the call to re-mould criminal law defences to take account of the experiences of marginalised groups, to the "get tough" rhetoric of politicians embracing penal populism. Estrich's argument, however, is not that the criminal justice system should attempt to be apolitical: ultimately, she says, it is all politics. So what is she arguing for? This is rather less clear. Her book, she tells us, "is an argument for politics as a source of faith I our faith in one another". I cannot help thinking, though, that if we all had faith in one another we would not have much need for a criminal justice system.

The problem with Estrich's argument is not only the rather vague solution she offers to the problem of politicisation. It is also that her conviction that all criminal justice decisions are political decisions obscures as much as it reveals. Her discussion of criminal law defences provides an example. A battered woman kills her abuser; an enraged citizen shoots a graffiti artist. Can we draw a principled line between the two cases so as to justify convicting one but not the other? According to Estrich the difference is just a matter of politics: it is a question of whom you favour. The only way to distinguish the cases is to ask a jury to decide (in good faith) whether the reactions of these people are reasonable.

But are we really wrong to seek a deeper distinction? There is surely a difference between experiencing repeated violence and experiencing urban degeneration, and this difference might be used to develop rules that would distinguish the cases. Estrich's counsel of despair, tempered only by her faith in faith, does little to advance the debate about what these rules might be.

Although any such rules would be political in some senses, there is a world of difference between rules and jury decisions: they each embody a different sort of politics. Estrich's failure to see this distinction is odd, because in her chapter on the jury she makes a similar point. Responding to the argument that black juries should acquit black defendants whom they believe to be guilty in order to condemn the racism of the system, she draws a distinction between the jury as a political institution (in the sense that courts and legislatures are) and its use as a means of gaining political ends, such as recognition of racism.

The most interesting chapter deals with sentencing. Here we are offered an insider's view on recent shifts in US penal policy. During her involvement in the Dukakis campaign, a brutal rape committed by a convicted murderer on weekend release from prison was ruthlessly exploited by Republicans, who claimed Dukakis was soft on crime. The upshot was that many Democrats, including Estrich, ditched liberal penal policies. But Estrich now favours an alternative. Some US research suggests that both the number of robberies and the number of robbers imprisoned could be reduced if just seven factors were used as a basis for imposing longer than normal sentences.

There are two immediate problems with this strategy. One is that not all of the factors relate directly to criminality (unemployment is one); the second is that there would be a false positive rate of 50 per cent. So what is Estrich's response to the robber who is given an enhanced sentence when, in fact, he would not reoffend? "Easy. The answer is tough luck." As a matter of principle, it is extremely difficult to justify imposing a harsher penalty on an offender because he possesses attributes unconnected with the offence for which he is being punished, just because those attributes mean that there is a 50 per cent chance of his reoffending. But principles rarely feature in Estrich's analysis: politics is all. A politics, moreover, that has little room for notions of justice.

Mike Redmayne is lecturer in law, Brunel University.