At bottom, our criminal-justice system exists to provide citizens with a sense of security in their day-to-day lives. In this regard, our criminal-justice system serves the same end as our national-security system. There is, however, a fundamental difference between these systems: while the national-security system focuses on external threats posed by groups who do not belong to our political community, the criminal-justice system focuses on internal threats we pose to one another — there is no clear line distinguishing those whom the system protects from those whom the system protects against. From this central dilemma arises all of the marvelous and maddening complexity of criminal law.
This observation also explains why criminal justice is so deeply, unavoidably political. In principle, the system must protect all citizens equally, but social conflict is a pervasive and inevitable feature of life in a nation as large and diverse as ours. In such a world as that, the system will rarely, if ever, be able to enhance the sense of security of one group without diminishing the security of others. The system must choose sides, and such decisions are inherently political.
The system focuses on protecting, most obviously, the physical security of our persons and property. Somewhat less obviously, but perhaps no less importantly, the system is also asked to safeguard certain sorts of psychic security: the individual’s sense of self-respect, of status in society, and of order and predictability in social relationships. (more…)