In an article forthcoming in the Southern California Interdisciplinary Law Journal, Colin S. Diver Professor of Law Paul H. Robinson and Lindsay Holcomb L’21 explain why criminal law must maximize its moral credibility while also addressing and answering objections to the concept.
The Criminogenic Effects of Damaging Criminal Law’s Moral Credibility” from the premise that the “criminal justice system’s reputation with the community can have a significant effect on the extent to which people are willing to comply with its demands and internalize its norms.” Ordinary people, they write, tend to expect that the system will conform to their intuitions of justice, which can be captured empirically via social science studies. This “empirical desert” is distinguishable from the “’deontological desert’ of moral philosophers,” they write, in that it aims to “do justice and avoid injustice, as [the public] perceive it.”The authors begin “
“The empirical studies and many real-world natural experiments suggest that a criminal justice system that regularly deviates from empirical desert loses moral credibility and thereby loses crime-control effectiveness,” the authors write. “These crime-control benefits, together with an analysis of the sometimes-disqualifying weaknesses of alternative distributive principles such as general deterrence and incapacitation of the dangerous, suggest that maximizing the criminal law’s moral credibility is the best distributive principle available.”
In the article, the authors also consider and answer criticisms of this proposal.
Robinson is one of the world’s leading criminal law scholars. A prolific writer and lecturer, Robinson has published articles in virtually all of the top law reviews, lectured in more than 100 cities in 34 states and 27 countries, and had his writings appear in 15 languages.
He is a former federal prosecutor and counsel for the U.S. Senate Subcommittee on Criminal Laws and Procedures and is the author or editor of 18 books, including American Criminal Law: Its People, Principles & Evolution; the standard lawyer’s reference on criminal law defenses; three Oxford monographs on criminal law theory; a highly regarded criminal law treatise; and an innovative case studies course book.
A member of the American Law Institute, Robinson recently completed three criminal code reform projects in the U.S. and two modern Islamic penal codes, including one under the auspices of the U.N. Development Programme. He began his academic career at Rutgers University School of Law at Camden in 1977 and joined the Penn Law faculty in 2003.
Troutman Pepper’s pro bono immigration cases, serving as a translator for clients from Central America, performing legal research, drafting papers for submission to the immigration court, and gathering and drafting character endorsement statements from friends and family for asylum and appeal cases.While a student at the University of Pennsylvania Carey Law School, Holcomb published six articles in law journals (including three with Robinson). She also worked on
Holcomb is currently clerking for the Honorable John Badalamenti of the U.S. District Court for the Middle District of Florida.