The Morality of Means: Some Problems in Criminal Sanctions

This article is based on the Louis Caplan Lecture delivered by Prof. Allen on April 10, 1981, at the University of Pittsburgh School of Law. The full text of the lecture, and accompanying footnotes, will be published in the Pittsburgh Law Review. In moments of exasperation , one may be tempted to misapply Mark Twain \u27s comment about the weather and complain that everyone talks about criminal justice, _but no one does anything about it. Sober second thought qmckly reveals, however, that the statement is not literally or even substantially true . Since the eighteenth-century Enlightenment much has been done, for good or ill, about the criminal law and penal justice . Capital punishment was notably curtailed in the western world, and a regime of prisons, reformatories, and other so-called secondary punishments was instituted. Hopes for rehabilitation of offenders soared in the nineteenth century, and the rehabilitative ideal dominated thought in our own era. Such products of penal rehabilitationism as the juvenile court, systems of probation and parole, and the indeterminate sentence recommended themselves to American legislators and, indeed, to lawmakers throughout western civilization. Then in the 1970s American allegiance tu the rehabilitative ideal precipitously declined , and we find ourselves today searching for a new intellectual blue print or paradigm to guide thought and policy for the remainder of the century. The substantive criminal law itself has expanded enormously, and today expresses an extraordinary range of purposes including not only that of minimizing violent behavior threatening to lives and property, but also the regulation of economic enterprise ; protection of the environment; correction of relations among races and genders ; alteration in habits of consumption of liquor, drugs, and sex; and even compliance with legislative dictates concerning times at which clocks are to be set. Many years ago I wrote that the system of criminal justice ma be viewed as a weary Atlas upon whose shoulders we have heaped a crushing burden of responsibilities relating to public policy in its various aspects. This we have done thoughtlessly without inquiring whether the burden can be effectively borne . The statement is a little flamboyant, as perhaps befits youth; but stripped of metaphor it seems accurate enough