This book by a Professor of Law at Stanford might well be called
Crime and Punishment except that its province is larger than that
and also larger than its title modestly implies. In a style
distinguished by its clarity, Packer examines our concept of
criminal punishment - its rationale, its process and its limits. He
discusses the justifications for various kinds of criminal
sanctions - compensation, regulation, punishment and treatment; the
clash of values that takes place at every level of the criminal
process; and finally, the problem of defining criteria for limiting
the reach of the "criminal sanction." He maintains that though we
need the criminal sanction as a device for dealing with "gross and
immediate harms," we resort to it in a far too indiscriminate way,
thus undermining it. "We can have as much or as little crime as we
please, depending on what we choose to call criminal." The book is
admirably organized, objective, and far more absorbing for the
general reader than the subject might suggest. (Kirkus Reviews)
The argument of this book begins with the proposition that there
are certain things we must understand about the criminal sanction
before we can begin to talk sensibly about its limits. First, we
need to ask some questions about the rationale of the criminal
sanction. What are we trying to do by defining conduct as criminal
and punishing people who commit crimes? To what extent are we
justified in thinking that we can or ought to do what we are trying
to do? Is it possible to construct an acceptable rationale for the
criminal sanction enabling us to deal with the argument that it is
itself an unethical use of social power? And if it is possible,
what implications does that rationale have for the kind of
conceptual creature that the criminal law is? Questions of this
order make up Part I of the book, which is essentially an extended
essay on the nature and justification of the criminal sanction.
We also need to understand, so the argument continues, the
characteristic processes through which the criminal sanction
operates. What do the rules of the game tell us about what the
state may and may not do to apprehend, charge, convict, and dispose
of persons suspected of committing crimes? Here, too, there is
great controversy between two groups who have quite different
views, or models, of what the criminal process is all about. There
are people who see the criminal process as essentially devoted to
values of efficiency in the suppression of crime. There are others
who see those values as subordinate to the protection of the
individual in his confrontation with the state. A severe struggle
over these conflicting values has been going on in the courts of
this country for the last decade or more. How that struggle is to
be resolved is a second major consideration that we need to take
into account before tackling the question of the limits of the
criminal sanction. These problems of process are examined in Part
II.
Part III deals directly with the central problem of defining
criteria for limiting the reach of the criminal sanction. Given the
constraints of rationale and process examined in Parts I and II, it
argues that we have over-relied on the criminal sanction and that
we had better start thinking in a systematic way about how to
adjust our commitments to our capacities, both moral and
operational.
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